Amicus Curiae Brief — United States v. American Library Assn., Inc.

Supreme Cowt Ua.

| FILED

, | JAN 10 2003

No. 02-361 ___ = OF THE CLERK

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL., Appellants,

v.

AMERICAN LIBRARY ASSOCIATION, INC., ET AL., Appellees.

On Appeal From the United States District Court

for the Eastern District of Pennsylvania

Brief Amicus Curiae of the American Center for

Law and Justice and Hons. Robert B. Aderholdt, Todd Akin,

Michael Collins, Jo Ann S. Davis, Duncan Hunter, Ernest

Istook, Jr., Charles Pickering, Jr., Jim Ryun,

' John M Shimkus, and John Sullivan

Supporting Appellants

JOHN P. TUSKEY

JAY ALAN SEKULOW

Counsel of Record

LAURA B. HERNANDEZ COLBY M. MAY

AMERICAN CENTER FOR BEN BULL

LAW & JUSTICE JAMES M. HENDERSON

1000 Regent University Dr. JOEL H. THORNTON

Virginia Beach, VA 23464 AMERICAN CENTER FOR

(757) 226 2489 LAW & JUSTICE

205 Third Street SE

Washington, DC 20003

(202) 546-8890

Attorneys for Amicus Curiae

TABLE OF CONTENTS

PUBLIC LIBRARIES TO USE FILTERING

TECHNOLOGY BECAUSE LIBRARY

COLLECTIONS, INCLUDING COMPUTER

TERMINALS WITH INTERNET ACCESS,

ARE NONPUBLIC FORA, AND FILTERS

~ HAVE NO EFFECT ON WHETHER SPEECH

” SD Sh aSendencacdedesvenceescenceuds 5

A. Government Intent is Central When

TABLE OF CONTENTS - Continued

Page(s)

2. This Court’s public forum cases

do not require gerrymandering

a library’s collection according

to the type of medium. ......... 11

B. The Use of Filtering Technology on

Public Library Computers Does Not

“Distort the Medium” of the Internet. ... 14

II. | LIBRARY PATRONS DO NOT HAVE A

FIRST AMENDMENT RIGHT TO ACCESS

MATERIALS IN A LIBRARY’S COLLECTION

IMMEDIATELY AND ANONYMOUSLY. ... 17

EE CGS 0 ee ees ncdeeeewdt'sedreccacces 19

TABLE OF AUTHORITIES

Cases: Page(s)

Adderly v. Florida, 385 U.S. 39 (1966) .....sseeeeeeees 6

American Library Assoc. v. United States,

201 F. Supp. 2d 401 (E.D. Pa. 2002) ....... passim

Arkansas Educ. Television Comm'n v. Forbes,

523 U.S. 666 (1998) .....ceeeees 4, 7, 8, 10, 13, 17

Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002) 15

Board of Educ. v. Pico, 457 U.S. 853 (1982) ..... 9,12, 13

Brown v. Louisiana, 383 U.S. 131 (1966) .....+++++. 9,19

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc.,

473 U.S. 788 (1985) ...ccecccccccccccccees 6,17

Denver Area Educ. Telecomm Consortium v. FCC,

$18 US. 727 (1996) -ccccccccccccccccccccces 19.

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ..14

FCC v. League of Women Voters, 468 U.S. 364 (1984) 3,15

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ...... 14

Greer v. Spock, 424 U.S. 828 (1976) ..-seseceeeceeeees 6

Lamont v. Postmaster General, 381 U.S. 301 (1965) .... 19

Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001) 3, 15

Maher v. Roe, 432 U.S. 464 (1970) .....ceeececeees 4, 16

Miller v. California, 413 U.S. 15 (1973) .....-eeeceees 14

National Endowment for the Arts v. Finley,

524 U.S. 569 (1998) ...cceccccccececccveces 4,8

Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,

450 U.S. 37 (1983) 0. ccccccccccccccccscccess 6

Regan v. Taxation With Representation, 461 U.S. 540 (19832

Reno v. ACLU, 521 U.S. 844 (1997) ...cseececececees 15

ill

TABLE OF AUTHORITIES - Continued

Page(s)

Rosenberger v. Rector & Visitors of the University of

Virginia,

515 U.S. 819 (1995) 2... ccecceccccccccccccees 6

Rowan v. Post Office Dept., 397 U.S. 728 (1970) ......- 14

Rust v. Sullivan, 500 U.S. 173 (1991) ...eeeeceeecccees 4

South Dakota v. Dole, 483 U.S. 203 (1987) «.+++eeeeees 5

United States Postal Serv. v. Council of Greenburgh Civic

Ass’ns, 453 U.S. 114 (1981) ..cccccccccccccees 6

Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) ....... 10

Widmar v. Vincent, 454 U.S. 263 (1981) .....ceeececees 7

STATUTES:

Va. Code Ann. § 2.1-804 (2002) .......-eeeeececes 10

Va. Code Ann. § 2.1-805 (2002) ......... csecseeeee 10

Va. Code Ann. § 2.1-806 (2002) .......-eeeceeeeees 10

LAW REVIEW ARTICLE:

Nadel, The First Amendment's Limitations on the Use of

Internet Filtering in Public and School Libraries:

What Content Can Libraries Exclude,

78 Tex. L. Rev. 1117 (1999) ..... eesoceeocecs 12

OTHER AUTHORITY:

<<http://www.washtimes.com/national/2002121]-

_S7400 Wtm>> ...- ee eeeees PPTTTTTTTIT TTT 9

iv

INTEREST OF AMICT

The American Center for Law and Justice (ACLJ) is

a public interest law firm committed to insuring the ongoing

viability of constitutional freedoms in accordance with

principles of justice. ACLJ attorneys have argued or

participated as amicus curiae in numerous cases involving

constitutional issues before this Court and lower federal

courts, and Chief Counsel Jay Alan Sekulow has presented

oral argument before this Court in eight cases.

As a public interest law firm, the ACLJ is dedicated

to defending families against efforts to undermine their

sovereignty, nature, and importance. Moreover, the ACLJ is

committed to supporting appropriate efforts by Congress and

the States toward the creation and sustenance of a social

order that supports the important work of families: the

rearing and protection of children. The proper resolution of

this case is a matter of substantial organizational concern to

the American Center for Law and Justice because of the

ACLJ’s commitment to American families.

This brief is also filed on behalf of Representatives

Robert B. Aderholt, Todd Akin, Michael Collins, Jo Ann S.

Davis, Duncan Hunter, Ernest Istook, Jr., Charles Pickering,

Jr., Jim Ryun, John M. Shimkus, and John Sullivan. These

amici currently are members of the United States House of

Representatives in the One Hundred Eighth Congress. These

Representatives disagree with the district court’s decision in

* This brief is filed with the consent of the parties, and letters indicating

such consent have been filed with the Court. Pursuant to Rule 37.6,

amicus ACLJ discloses that no couusel for any party in this case authored

in whole or in part this brief and that no monetary contribution to the

preparation of this brief was received from any person or entity other

than amicus curiae.

American Library Assoc. v. United States and urge this Court

to reverse it.

SUMMARY OF THE ARGUMENT

The question in this case is whether the First

Amendment confers a right on library patrons to have

government-subsidized, immediate access to all legal

Internet materials by means of public library computers. To

answer this question requires forum analysis, and the first

step in that analysis is to identify the forum at issue. The

forum at issue in this case is library computers, not the

Internet. The central fault of the district court’s decision was

the court’s conflation of these two different fora. Every error

in the district court’s opinion stems from this confusion. By

focusing primarily on the nature of the Internet, and on the

access sought by library patrons, the court ignored the

centrality of government intent in its forum analysis. See

American Library Assoc. v. United States, 201 F. Supp. 2d

401, 455-56 (E.D. Pa. 2002). Consequently, the court

disregarded overwhelming record evidence that public

libraries intend to regulate the use of their computers for

Internet access in accordance with the same principles that

govern the acquisition of other materials in their collections.

The vast majority of libraries attempt to restrict the

use of their computers to research purposes, routinely barring

patrons from using library computers with Internet access for

entertainment, interpersonal communication, shopping, and

the indulgence of prurient interests. Jd. at 422-23. There is no

constitutionally significant difference between the control

libraries exercise over their collections as a whole, and the

control they attempt to exercise over Internet access on their

computers. The unmanageable size of the Internet and the

resulting fact that libraries cannot review Internet materials

as effectively as other materials does not justify depriving

2

libraries of reasonable measures, including filters, to regulate

the use of their computers. The technical impossibility of

excising only illegal materials from the Internet should not

serve as a constitutional barrier to the use of filters when

libraries already bar patrons from accessing other legal

materials on the Internet. This Court’s public forum doctrine

does not require balkanization of a public library’s collection

such that a public library’s control over scarce resources

varies from medium to medium. A library’s collection is a

nonpublic forum, and public libraries may, consistent with

the First Amendment, retain editorial control over all sources

of information within the library’s collection.

Confusing the Internet with public library computers

also led the district court to erroneously conclude that a

library’s use of filtering technology distorts the medium of

the Internet. Unlike the cases in which this Court has struck

down laws that targeted speech within a medium because

they distorted the medium’s usual functioning,’ filters have

no effect on the Internet itself. Filters only affect what is

accessible on a specific computer. Internet speech remains

intact and is accessible on innumerable other computers and

from ther sources. If a library’s use of filters distorts the

Internet, then a library’s decision to discard the classified ads

from a single newspaper distorts the news media.

Finally, library patrons do not have a constitutional

right to anonymous and immediate access to Internet

materials on library computers. The district court erred in

holding that the First Amendment confers such a right that is

violated if patrons must request the disabling of a filter that

has blocked constitutionally protected material. The First

Amendment provides no warrant for extending this Court’s

decisions affirming a right to receive information

' See, e.g., Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001); FCC

v. League of Women Voters, 468 U.S. 364 (1984).

3

anonymously to information obtained on government

property at government expense. The creation of such a

right threatens the existence of public libraries, which must

require patrons to divulge their identity in a number of ways.

Because public libraries may use filters to regulate

Internet access on their computers without violating the First

Amendment, the Children’s Internet Protection Act, which

merely encourages the use of filters, is constitutional.

ARGUMENT

The First Amendment does not confer a right on

library patrons to have government-subsidized, immediate

access to all legal Internet materials by means of public

library computers. This Court repeatedly has rejected the

notion that constitutional rights must be subsidized by the

government to be fully realized. See NEA v. Finley, 524

U.S. 569, 585-88 (1998); Arkansas Educ. Television Comm'n

v. Forbes, 523 U.S. 666, 672-675 (1998); Rust v. Sullivan,

500 U.S. 173, 193-94 (1991). Maher v. Roe, 432 U.S. 464,

479 (1970). The First Amendment right to receive

information does not obligate the government to provide

instantaneous access to such information on government

property, even if the government property is dedicated to the

exchange of ideas.

L. THE FIRST AMENDMENT PERMITS PUBLIC

LIBRARIES TO USE FILTERING

TECHNOLOGY BECAUSE LIBRARY

COLLECTIONS, INCLUDING COMPUTER

TERMINALS WITH INTERNET ACCESS, ARE

NONPUBLIC FORA, AND FILTERS HAVE NO

~ EFFECT ON WHETHER SPEECH OCCURS.

As the district court recognized,”? the proper

analytical framework for evaluating the constitutionality of

the Children’s Internet Protection Act (CIPA) is provided in

South Dakota v. Dole, 483 U.S. 203 (1987). Under Dole,

when Congress attaches conditions to a state agency’s

receipt of federal funds, those conditions may not require the

state agency to violate the Constitution. 483 U.S. at 208.

CIPA’s provisions are therefore unconstitutional only if the

First Amendment forbids libraries from using filtering

technology to ensure that scarce computer terminals are used

in ways compatible with the library’s mission. Because

library computer terminals, like the rest of a library’s

collection, are nonpublic fora, libraries are free, under the

First Amendment, to impose content-based restrictions,

including filtering technology, on Internet access.

A. Government Intent is Central When

Defining the Contours of a

Government Forum.

The public’s First Amendment right of access to

government property depends upon the nature and character

of the property. Cornelius v. NAACP Legal Defense & Educ.

Fund, Inc., 473 U.S. 788, 800-01 (1985); Perry Educ. Ass'n

? See American Library Assoc. v. United States, 201 F. Supp. 2d 401, 450

(E.D. Pa. 2002).

5

v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45-47 (1983).

With regard to property that is not a traditional public forum,

the government’s intent is the starting point in forum

analysis, because “the government does not create a public

forum by inaction or by permitting limited discourse, but

only by intentionally opening a nontraditional forum for

public discourse.” Cornelius 473 U.S. at 802. Analyzing

intent is crucial, because the “State, no less than a private

owner of property, has power to preserve the property under

its control for the use to which it is lawfully dedicated.”

Greer v. Spock, 424 U.S. 828, 836 (1976) (quoting Adderley

v. Florida, 385 U.S. 39, 47 (1966)); Perry Educ. Ass'n, 460

U.S. at 46; Cornelius, 473 U.S. at 800. The “First

Amendment does not guarantee access to property simply

because it is owned or controlled by the government.”

United States Postal Serv. v. Council of Greenburgh Civic

Ass'ns, 453 U.S. 114, 129 (1981). In particular, the state

must have “substantial discretion” in determining how to.

allocate scarce resources to accomplish its mission.

Rosenberger v. Rector & Visitors of the University of

Virginia, 515 U.S. 819, 829 (1995). Furthermore, “the

government need not wait until havoc is wreaked to restrict

access to a nonpublic forum. . . . The First Amendment does

not forbid a viewpoint-neutral exclusion of speakers who

would . . . hinder its effectiveness for its intended purpose.”

Cornelius, 473 U.S. at 810-11.

Where government resources, such as computer

terminals, are scarce,’ the centrality of governmental intent

in forum analysis is inextricably linked to the promotion of

First Amendment activity on government property:

> The district court found that in most public libraries, computer

terminals are scarce, and that demand often exceeds supply. See 201 F.

Supp. 2d at 465.

6

We encourage the government to open its property to

some expressive activity in cases where if faced with

an all-or-nothing choice, it might not open the

property at all. That this distinction [between general

and selective access] turns on government intent does

not render it unprotective of speech. Rather it

reflects the reality that, with the exception of

traditional public fora, the government retains the

choice of whether to designate its property as a forum

for specified classes of speakers.

Were it faced with the prospect of cacophony, on the

one hand, and First Amendment liability on the other,

a public television broadcaster might choose not to

air candidates’ views at all. A broadcaster might

decide “the safest course is to avoid controversy, ...

and by so doing diminish the free flow of information

and ideas.”

Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666,

680-81 (1998) (citations omitted). Cf Widmar v. Vincent,

454 U.S. 263, 278 (1981) (Stevens, J., concurring) (where

government facilities, such as university meeting rooms, are

scarce, government may, consistent with the First

Amendment, promote some uses over others).

The district court ignored the centrality of

government intent in forum analysis. Examining this Court’s

public forum jurisprudence myopically, the district court held

that the forum is defined by the “specific access that the

plaintiff seeks.” See American Library Assoc. v. United

States 201 F. Supp. 2d 401, 455 (E.D. Pa. 2002). “[T]he

right at issue in this case is the specific right of library

patrons to access information on the Internet, and the specific

7

right of Web publishers to provide libraries with information

via the Internet.” Jd. Thus, according to the district court, a

library has no authority to restrict Internet access (other than

for illegal materials), if a patron seeks access to all that is

available on the Internet. The district court’s forum analysis

derailed on the superficially enticing, but false :.clion that

because the Internet itself is a public forum, library computer

terminals offering such access are public fora.

1. The district court ignored

overwhelming evidence that public

libraries intend to restrict the use of

library computers in accordance

with the principles that govern

acquisition and_ retention of

materials in their collection.

The district court had no trouble recognizing that

library print collections are nonpublic fora. 201 F. Supp. at

462. Because libraries have limited resources, libraries must

have the liberty to select materials in keeping with their

missions. Due to the substantial amount of editorial

discretion libraries exercise in acquiring their collections,

such collections are nonpublic fora. Cf Arkansas Educ.

Television Comm’n, 523 U.S. at 675 (forum analysis is

inappropriate because public broadcasting station has limited

resources and must use editorial discretion in scheduling

programming). See also National Endowment for the Arts v.

Finley, 524 U.S. 569, 586 (1998) (forum analysis did not

apply, in part, because the NEA’s decisions about which art

to subsidize necessarily involved content-based judgments).

The district court also recognized that library

computers are part of a library’s limited resources. See 201

F. Supp. 2d at 465. Shifting focus from the library’s

computers to the Internet itself, however, the court held that

because the Internet is “a vast democratic forum,” content-

based restrictions on access at library computers are subject

to strict scrutiny. Jd. at 463-64. Thus, the court concluded

the First Amendment requires that library computers with

Internet access serve as the conduit for all legal materials on

the Internet, irrespective of how a library intends that its

computers be used. In so holding, the district court failed

completely to consider both the character of public libraries,

as well as the current policies of the vast majority of public

libraries offering Internet access.

While public libraries are certainly devoted to

“freewheeling inquiry,” Board of Educ. v. Pico, 457 U.S.

853, 915 (1982) (Rehnquist, J., dissenting), they are also

“dedicated to quiet, to knowledge, and to beauty,” Brown v.

Louisiana, 383 U.S. 131, 142 (1966). There was abundant

evidence in the record that the vast majority of public

libraries impose content-based restrictions on Internet access

in accordance with these principles. Many libraries prohibit

the viewing of legal pornography. See 201 F. Supp. at 422-

23. Many others prohibit the viewing of all sexually explicit

materials. Jd. at 423. Still others bar the use of e-mail, chat

rooms, and computer games. Id. at 423. A recent report

found that nearly half of all public libraries with Internet

access use filtering technology.’ The nearly universal use of

content-based restrictions demonstrates an intent to control

Internet access just as libraries control acquisition of their

print collections. A library’s offerings reflect the character of

a public library as a place dedicated to the pursuit of

knowledge. Libraries do not intend to confer carte blanche

access to their computer terminals just because the Internet is

an unlimited medium.

“See Cheryl Wetzstein, Study Finds Porn Filters Leave Health Web Sites,

WASHINGTON TIMES, Dec. 11, 2002, available at

http://www.washtimes.com/national/2002 121 1-57400.htm.

9

More importantly, the ability to impose content-based

restrictions on Internet access is clearly crucial to many

libraries’ decision to offer such access. Faced with the

Hobson’s choice thrust upon them by the district court’s

decision, many libraries will undoubtedly cease offering

Internet access. Fears about stanching the “free flow of

information and ideas,” Arkansas Ed. Television, 523 U.S. at

681, will become reality. It is hard to see how the public

interest will be better served by having no public Internet

access than substantially increased, free Internet access with

limited restrictions. Surely, this is not what the First

Amendment requires.

The district court’s decision has disturbing

implications for any government entity that provides

computers with Internet access. If “the access that is

sought,” is the dispositive factor, see 201 F. Supp. 2d at 455,

and providing Internet access on a government computer

converts the computer into a public forum by virtue of the

nature of the Internet as a vast democratic forum,

government entities are constitutionally barred from placing

content-based restrictions on the use of those computers.

Thus, a state law restricting public employees from accessing

sexually explicit materials on the Internet while using

government computers would presumably be

unconstitutional. See, e.g., Va. Code Ann. §§ 2.1-804 to -

806 (Michie Supp. 1999). As one federal appellate court has

already held, such a bizarre conclusion finds no refuge in the

First Amendment, even when the government property at

issue is dedicated to the free exchange of ideas. See Urofsky

v. Gilmore, 216 F.3d 401 (4" Cir. 2000) (en banc)

(upholding constitutionality of Va. Code Ann. §§ 2.1-804 to

-806 as applied to public university faculty).

10

2. This Court’s public forum cases do

not require gerrymandering a

library’s collection according to the

type of medium.

The First Amendment does not require library

computers to be segregated from the rest of a library’s

collection for purposes of forum analysis. The district court

held that the First Amendment required disparate treatment

of a library’s computer terminals because of the uniqueness

and vastness of the Internet as a medium. Therefore,

according to the court, because libraries cannot, due to the

immensity of the task, review all Internet materials, the First

Amendment requires that they forfeit the right to exercise

any content-based control over Internet access. See 201 F.

Supp. 2d at 462-63.

There is no constitutionally sound basis for

distinguishing between a library’s print collection and its

computer terminals with Internet access. Just as libraries

need not provide the complete works of Jacqueline Susanne,

they need not provide access to all that is on the Internet. If,

for example, libraries offered cable television access to

patrons, no one could seriously maintain that libraries must

also offer the Playboy and Spice channels. If, however,

excluding the Playboy and Spice channels also entailed the

loss of the History and Discovery channels,” nothing in this

Court’s First Amendment jurisprudence suggests that such a

loss would violate the First Amendment, even though both

channels air constitutionally-protected material that the

library might otherwise offer. The television belongs to the

library; its decision about what programming to offer should

* As anyone with cable television service knows, most cable companies

sell their services by offering packages whereby the subscriber must

often accept subscription to undesired channels to receive desired

channels.

1]

not be the subject of judicial review any more than is its

decision about what book to place on its featured best seller

shelf. The technical infeasibility of surgically excising

inappropriate material should not serve as a justification for

compelling libraries to offer the Playboy and Spice channels.

The First Amendment protects against the official

suppression of ideas, see Regan v. Taxation With

Representation, 461 U.S. 540, 550 (1983), not against the

removal (inadvertent or otherwise) of resources from

government property. Removing materials from government

property is no more an unconstitutional suppression than

refusing to acquire the same materials. See Pico, 457 U.S. at

892 (Burger, C.J., joined by Rehnquist, J., Powell, J., and O’

Connor, J., dissenting) (the coincidence of timing should not

serve as the basis of a constitutional holding). See also id. at

916 (Rehnquist, J., dissenting) (“[T]his distinction between

acquisition and removal makes little sense. The failure of a

library to acquire a book denies access to its comtents just as

effectively as does removal of the book from the library’s

shelf.”’).

There is no constitutional right to have immediate,

anonymous, government-subsidized access to all available

speech, just because the speech is on the Internet. Just as

nothing in the First Amendment compels a library to be the

courier of what a private speaker has to say, nothing in the

First Amendment confers a right to have ceftain speech

“affirmatively provided at a particular place by the

government.” Pico, 457 U.S. at 888 (Burger, C.J., joined by

Rehnquist, J., Powell, J., and O’Connor, J., dissenting).

The government does not “contract the spectrum of

available knowledge ... by choosing mot to retain

certain books on the school library shelf; it simply

chooses not to be the conduit for that particular

12

information. In short, ... there is not a hint in the

First Amendment, or in any holding of this Court, of

a “right” to have the government provide continuing

access to certain books.

Id. at 888-89 (emphasis added).

To hold that the vastness of Internet resources

precludes libraries from exercising editorial discretion over

Internet access on scarce library computers imposes an

untenable “all-or-nothing,” choice on libraries. Arkansas

Educ. Tele. Comm'n, 523 U.S. at 680. If library computers

with Internet access are public fora, and any attempt to

impose content-based controls on the use of library

computers with Internet access meets with strict scrutiny,

then any library patron would have a constitutional right to

access any legal materials on library computers. Library

patrons could, for example, download pornography, access

dating services, or shop for “Beanie Babies,” regardless of

the fact that such activities are inconsistent with the

traditional mission of public libraries, and therefore with

library policies concerning preferred uses of scarce computer

terminals. Under the district court’s reasoning, what library

patrons use computer terminals for when accessing the

Internet (short of obscenity, child pornography, and with

respect to minor patrons, material harmful to minors) is

ultimately none of the library’s business.° Therefore, even

* The district court was apparently undisturbed by the grave

constitutional! difficulties inherent in supposedly less restrictive means of

controlling Internet use on library computers. For example, “tap on the

shoulder” policies, see, ¢.g., 201 F. Supp. 2d at 482, raise a far greater

risk of intentional censorship than do filters. As the district court

conceded, filters inadvertently block constitutionally protected speech,

and such inadvertent blocking is easily remedied by disabling the filter.

By contrast, a librarian taps a patron's shoulder intentionally and the

patron has little choice but to obey the librarian, whether or not the

material being viewed is constitutionally protected.

13

“tap on the shoulder” policies become constitutionally

suspect.

The First Amendment does not forbid libraries from

using reasonable tools to maximize preferred uses of library

computers. Filters help libraries allocate the limited amount

of Internet access they can afford in a manner most

compatible with their role in the community.

B. Filtering Public Library Computers Does

Not “Distort the Medium” of the Internet.

Again confusing the Internet itself with public library

computers (which is the forum to which access is sought),

the district court erroneously reasoned that because filters

inadvertently block constitutionally protected speech, they

distort the “marketplace of ideas that the state has created in

establishing the forum.” See 201 F. Supp. 2d at 461.

Far more egregious, however, is the violation of the librarian’s and other

patrons’ interest in being free from unwanted exposure to highly

offensive pornography. To effectively monitor patrons’ access to illegal

materials, librarians must necessarily be exposed to a range of sexually

explicit material, including what most would consider grossly offensive.

They cannot “avert their eyes,” Erznoznik v. City of Jacksonville, 422

U.S. 205, 211 (1975), and because they are captive as employees charged

with the duty to monitor patrons’ Internet use, their interest in being free

from exposure to both legal and illegal pornography is violated. See

Rowan v. Post Office Dept., 397 U.S. 728, (1970). To say that librarians

and patrons can look away “is like saying the remedy for an assault is to

run to away after the first blow.” FCC v. Pacifica Foundation, 438 U.S.

_ 726, 749 (1978). Even assuming most libraries are able to find one

librarian who is willing regularly to view online pornography, see F.

Supp. 2d at 482, it is ridiculous to expect librarians to decide what is

See, e.g., Miller v. California, 413 U.S. 15, 20-23 (1973) (acknowledging

“the somewhat tortured history of this Court’s obscenity decisions” due

to the Court’s concern that “in the area of freedom of speech and press

the courts must always remain sensitive to any infringement on genuinely

serious literary, artistic, political, or scientific expression”).

14

Filters do not distort the medium itself. They merely

limit what may be immediately accessed on government

property. In the cases relied upon by the district court, this

Court struck down laws restricting speech on various media,

because the laws themselves intentionally targeted what

speakers could say in a given medium. See, e.g., Reno v.

ACLU, 521 U.S. 844 (1997) (holding unconstitutional the

Communications Decency Act which imposed criminal

penalties on certain web publishers); Ashcroft v. Free Speech

Coalition, 122 S. Ct. 1389 (2002) (striking down provisions

of the Child Pornography Prevention Act, a criminal statute

targeting certain speech on the Internet); FCC v. League of

Women Voters, 468 U.S. 364 (1984) (striking down

prohibition against editorial speech by public broadcasting

stations); Legal Services Corp. v. Velazquez, 531 U.S. 533

(2001) (declaring unconstitutional a ban on certain attorney

speech because the ban distorted the traditional role of

attorneys in presenting to the courts a full range of

arguments on behalf of clients). In these cases, however, the

concern about “distortion” arose because the law at issue

intentionally targeted, and thus would have chilled, if not

eliminated, speech within the medium itself.

By contrast, a library’s use of filters, and therefore

CIPA, has no effect on the Internet as a medium. Because

filters are confined to individual computers, they do not

affect speech on the Internet itself. They cause no

“distortion” of the medium. Rather, filters only limit what is

immediately available at public expense on library

computers. The Internet exists unimpeded regardless of

what public libraries do. If no library in the country

provided Internet access, the current state of the Internet

would be unaffected. By providing even filtered Internet

access, libraries are expanding, not restricting patrons’

Internet access. And, as with any speech, what may be

15

unavailable at a given library is certainly available in

numerous other places, including other computers with

Internet access. There is no First Amendment right to

demand that government pay for access to speech that is

fully available elsewhere.

That some residents in poor communities may not

have other means of Internet access does not change this.

This Court long ago rejected the notion that constitutional

rights, even those of poor citizens, must be subsidized by the

government to be fully realized. See, e.g., Maher v. Roe, 432

U.S. 464, 469 (1970) (upholding Connecticut’s decision not

to subsidize indigent woman’s right to abortion; “the

Constitution does not provide judicial remedies for every

social and economic ill”). There are innumerable sources of

information, even about “sensitive issues” such as the

practice of so-called safe sex. For example, the National

Center for Disease Control provides this kind of information.

While the Internet may often provide the most convenient

source of information, it would be a stunning distortion of

the First Amendment to say that it guarantees a right to

receive information at public expense at the quickest and

most convenient source. In any event, filters only

temporarily limit access to constitutionally protected speech.

Where filters block materials that libraries would normally

make available, the material can be had for the asking, in no

more intrusive a fashion than a request for an Inter-library

loan.

In sum, library computers are one component of the

library’s collection. Library computers, like the library's

print collection are a nonpublic forum. Libraries may

accordingly place limitations on the acceptable subject

matter that can be accessed “so long as the distinctions

drawn [between acceptabie and unacceptable subjects] are

reasonable in light of the purpose served by the forum and

16

are viewpoint neutral.” See Cornelius v. NAACP Legal

Defense & Educ. Fund, 473 U.S. 788, 806 (1985). The mere

risk of viewpoint discrimination is not enough to justify

stripping libraries of their control over the use of computers

with Internet access. See Arkansas Educational Television,

523 U.S. at 676. Limitations that libraries put on Internet

access need not even “be the most reasonable,” and “[t)he

First Amendment does not demand unrestricted access to a

nonpublic forum merely because use of that forum may be

the most efficient means of [receiving] a speaker's message.”

Cornelius, 473 U.S. at 808-09.

II. LIBRARY PATRONS DO NOT HAVE A FIRST

AMENDMENT RIGHT TO £ACCESS

MATERIALS IN A LIBRARY’S COLLECTION

IMMEDIATELY AND ANONYMOUSLY.

In addition to holding that library patrons he ve a First _

Amendment right to access any constitutionally protected

speech on library computers, the district court held that the

First Amendment guarantees patrons immediate and

anonymous access to such speech. See 201 F. Supp. 2d at

486-87. Rejecting the government’s argument that CIPA’s

disabling provisions cure any constitutional infirmity in

CIPA, the court erroneously ruled that requiring patrons to

request the disabling of a blocked website violated the First

Amendment right to receive information anonymously. /d.

The court reached this startling conclusion in the face of

evidence that it was technically feasible for libraries to

process requests for unblocking anonymously. Jd. at 487.

The court also ruled that even waiting for websites to be

unblocked constituted an impermissible burden on library

patrons’ First Amendment rights. Jd. Thus, according to

the district court, because the Internet affords users the

possibility of immediate, anonymous access to information,

that possibility is transmogrified into a constitutional right

17

when using a library computer. This is sc even though

library patrons do not enjoy either anonymous or immediate

access to other materials in a library’s collection.

Anyone who has ever used resources in a public

library knows that such use usually entails the loss of

anonymity, and often a wait for desired maierials. For

example, library patrons may not even obtain a library card

without divulging name, address, and phone number.

Librarians can readily discover precisely what materials

patrons have checked out. There is often an extended wait

for a library’s copy of a bestseller. Reference materials are

often inaccessible and must be requested from reference

librarians. Before requesting an Inter-Library loan, a patron

usually must give librarians identifying information so that

the library can notify the patron when the materials have

arrived. There is often an extended wait before the materials

arrive. Thus, the notion that library patrons have a

constitutional right to immediate, anonymous access to

materials in a public library’s collection is patently absurd.

_ If patrons do have such rights, then public libraries must

dramatically change their traditional mode of operation.

Indeed, no library could accommodate all these “rights” and

remain a viable institution.

There is no constitutionally significant difference

between an Inter-Library loan request and a request to

disable an Internet filter. In both cases, the materials are not

immediately available from a library’s collection. In neither

case is the potential embarrassment to the patron greater.

Indeed, a library patron is more likely to secure access to a

blocked website without having to reveal his identity than

when requesting an Inter-Library loan.

This Court’s decisions addressing the right to receive

information anonymously are inapposite because they

18

concerned laws that burdened a private citizen’s right to

receive information in his own home. For example, in

Lamont v. Postmaster General, 381 U.S. 301 (1965), this

Court struck down a federal statute requiring recipients of

communist propaganda through the mails to explicitly

request delivery of such materials. In Denver Area Educ.

Telecomm Consortium v. FCC, 518 U.S. 727 (1996), the

Court held unconstitutional a law requiring cable operators

to provide pornography only to those subscribers who

requested it in writing. These cases provide no support for

the novel assertion, which flies in the face of historical

library practices, that library patrons have a constitutional

right to anonymously access materials in a public library’s

collection.

Because the materials in a library’s collection, even

those on the library’s computers with Internet access, belong

to the library, the library may, without violating the First

Amendment, establish the terms upon which library patrons

can use them. Any other conclusion threatens the very

existence of public libraries.

CONCLUSION

CIPA merely encourages libraries to do what the

First Amendment permits, which is to exclude child

pornography, obscenity, and materials harmful to minors

from a nonpublic forum because they hinder the purposes

that libraries serve. CIPA is not aimed at the suppression of

ideas. It is aimed instead at the clearly proscribable evil of

pornography in a public place that historically has been

“dedicated to quiet, to knowledge, and to beauty.” See

Brown v. Louisiana, 383 U.S. 131, 142 (1966).

19

For the foregoing reasons, and those expressed in

Appellants’ brief, this Court should reverse the judgment

below and hold that CIPA is constitutional.

Respectfully submitted,

JAY ALAN SEKULOW

Counsel of Record

JOHN P. TUSKEY COLBY M. MAY

Laura B. Hernandez BEN BULL

American Center For JAMES M. HENDERSON

LAW & JUSTICE JOEL H. THORNTON

1000 Regent University Dr. AMERICAN CENTER FOR

Virginia Beach, VA 23464 Law & JUSTICE

(757) 226-2489 205 Third Street SE

Washington, DC 20003

(202) 546-8890

Attorneys for Amici Curiae

January 10, 2003