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

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In The

Supreme Court of the Anited States

UNITED STATES OF AMERICA, ET AL.,

Appellants,

AMERICAN LIBRARY ASSOCIATION, INC., ET AL.

On Appeal From The United States District Court

For The Eastern District Of Pennsylvania

BRIEF OF CITIES, MAYORS AND COUNTY

COMMISSIONERS AS AMICUS CURIAE

IN SUPPORT OF APPELLANTS

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER III

LIBERTY LEGAL INSTITUTE

903 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

Counsel for Amicus Curiae

January 10, 2003

COCKLE LAW BRIEF PRINTING CO. (800) 225-6954

OR CALL COLLECT (402) 342-2831

Al Pi?

TABLE OF CONTENTS

CITIZENS HAVE NO CONSTITUTIONAL

RIGHT TO COMPEL THE GOVERNMENT

TO SUBSIDIZE AND PROVIDE ACCESS TO

PARTICULAR INTERNET WEBSITES

A. The right does not exist

Congress may freely pick and choose which

information it will subsidize without violat-

. Congress defined the scope of its subsidi-

zation project as providing filtered Inter-

MUNICIPALITIES CANNOT EFFECTIVELY

FUND AND PROVIDE LIBRARIES TO THEIR

CITIZENS IF STRICT SCRUTINY IS TO

BE APPLIED TO THEIR DECISIONS OVER

A. There is no distinction between printed

speech and speech on the Internet

The prior review distinction drawn by the

district court between printed material

and electronic material on the Internet is

. Lessening governmental prior review of

private speech should lessen, not raise, the

TABLE OF CONTENTS - Continued

III. MUNICIPALITIES AND LOCAL COMMUNI-

TIES, NOT COURTS, SHOULD MAKE THE

DECISIONS ABOUT WHAT MATERIALS

SHOULD BE IN THEIR LOCAL LIBRARIES ...

A. This case is an attempt by libraries to use

courts to override the local authority of

municipalities that create, fund, and set

policy for the libraries ..............-sssssereeereees

B. Many municipalities will choose to stop

providing Internet access if forced to pro-

vide unfiltered Internet access...............-+++

IV. THERE ARE NUMEROUS RATIONAL BASES

FOR KEEPING PORNOGRAPHY OUT OF

THE PUBLIC LIBRARIES .............0:eceeseeserereeeeees

~ CONCLUSION ...........:sssssceseeeesessesereesserenerenteeeenenennes

Page

TABLE OF AUTHORITIES

Page

CASES

American Library Ass’n v. United States, 201

F.Supp.2d 401 (E.D. Pa. 2002) ................ 3, 8, 9, 12, 16

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

ES area eee 6

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ......... 17

Board of Ed. v. Pico, 457 U.S. 853 (1982).......... 2, 4, 5, 6, 19

Board of Trustees of the Univ. of Ala. v. Garrett, 531

LE A ee 23

Buckley v. Valeo, 421 U.S. 1 (1976).............cccccccesessseseseeeees 20

Dolan v. City of Tigard, 512 U.S. 374 (1994).........cccccceeeee 7

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)............. 25

Harris v. McRae, 448 U.S. 297 (1980) ..........ccccccccceeseeeeeeeeee 6

Lovell v. Griffin, 303 U.S. 444 (1938) ..........ccccccccceeceeseeeees 13

Maher v. Roe, 432 U.S. 464 (1977)........ccccccccccccecceeeeeeeees 5, 11

National Endowment for the Arts v. Finley, 524

EE eee 4

New York v. Ferber, 458 U.S. 747 (1982) ..........cccccceeeeeee 9, 25

Perry v. Sindermann, 408 U.S. 593 (1972) ...........ccccceeeeee 7,8

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ............000000 9

Regan, Secretary of the Treasury v. Taxation with

Representation of Washington, 461 U.S. 540 (1983)........ 8

Roschen v. Ward, 279 U.S. 337 (1929) ..........ccccccceceecceceeeees 12

Rust v. Sullivan, 500 U.S. 173 (1991)...........:.... 2, 7, 8, 9, 10

Rutan v. Republican Party, 497 U.S. 62 (1990).................. 7

TABLE OF AUTHORITIES — Continued

Page

Sherbert v. Verner, 374 U.S. 398 (1963)..........--..ceeeeseeeeeeees 7

Speiser v. Randall, 357 U.S. 513 SS 7,8

STATUTES

Children’s Internet Protection Act, Pub. L. No. 106-

554, Div. B, Tit. XVII, 114 Stat. 2763A-335...........-.0-0++ 2

OTHER AUTHORITIES

Abel, G., in EINSIEDEL, E.F., SOCIAL SCIENCE RE-

PORT. PREPARED FOR THE ATTORNEY GENERAL'S

COMMISSION ON PORNOGRAPHY, U.S. DEPARTMENT

OF JUSTICE (Washington, D.C., 1986) .............csss-eeeeees 25

Marshall, W.L., Ph.D., Pornography and Sexual

Offenders, in PORNOGRAPHY: RESEARCH ADVANCES

AND POLICY CONSIDERATIONS 189 (D. Zillmann &

J. Bryant eds., 1989) ..........ccsescesseereseesserennensenesnnnsnnennes 22

MARSHALL, W.L., PH.D., A REPORT ON THE USE OF

PORNOGRAPHY BY SEXUAL OFFENDERS (Ottawa,

Canada, Federal Department of Justice, 1983)............. 23

OKLAHOMA STATE BUREAU OF INVESTIGATION, RAPE

STATISTICS — OKLAHOMA CITY VS. BALANCE OF

U.S. DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,

BEYOND THE PORNOGRAPHY COMMISSION: THE

FEDERAL RESPONSE (Washington, DC: GPO, July

. ——. ee eee

INTEREST OF AMICUS CURIAE'’

Amici’ are cities, mayors and county commissioners

committed to providing Internet access in their public

libraries to enhance the educational tools and research

resources available to library patrons. For Amici, this case

is about choice. Amici desire to retain the ability to choose

the type of Internet access they provide their citizens and

how they will develop and administer policies regarding

the regulation of Internet usage in their libraries. The

decision of the district court in this case hinders the ability

of all cities and counties across the country to decide the

type of Internet access they are willing to subsidize,

forcing local government to choose between knowingly

providing illegal and child pornography and providing no

Internet access at all.

amici, their members, or their counsel, has made a monetary contribu-

tion to the preparation or submission of this brief.

SUMMARY OF ARGUMENT

The Children’s Internet Protection Act (CIPA), Pub. L.

No. 106-554, Div. B, Tit. XVII, 114 Stat. 2763A-335, offers

to subsidize filtered Internet access to any local commu-

nity library. Local cities and communities have the choice.

The lower court’s decision takes choice away by banning

filtering as unconstitutional.

This sweeping decision is based upon a novel right -

the right of citizens to compel the government to provide

access to particular Internet websites. This right does not

exist. See Board of Ed. v. Pico, 457 U.S. 853 (1982) (Bur-

ger, C.J., dissenting). Congress may pick and choose which

information it wishes to subsidize. Citizens have no right

to force Congress to subsidize their speech because Con-

gress has chosen to subsidize other speech. See Rust v.

Sullivan, 500 U.S. 173 (1991).

Library decisions as to what goes into the library are

subject to rational basis review, not strict scrutiny. The

same speech should not be treated differently because it is

a printed, rather than electronic, version. Applying strict

scrutiny to library decisions as to what materials come

into the library would be disastrous, wresting authority

from local communities.

Cities, mayors, county commissioners and other local

officials, not courts, should make the decisions about what

materials should be in the local library. Local officials are

closer to those they represent and can be more responsive

and effective in knowing and serving the needs of their

community. Cities should not be forced to choose between

knowingly providing illegal and child pornography or

providing no access at all.

The decision below should be reversed, restoring the

authority of neighborhoods, communities and local librar-

ies across the United States.

ARGUMENT

I. CITIZENS HAVE NO CONSTITUTIONAL RIGHT

TO COMPEL THE GOVERNMENT TO SUBSI-

DIZE AND PROVIDE ACCESS TO PARTICULAR

INTERNET WEBSITES.

The district court articulated the right at issue in the

case as “the specific right of library patrons to access

information on the Internet, and the specific right of Web

publishers to provide library patrons with information via

the Internet.” American Library Ass’n v. United States,

201 F.'Supp.2d 401, 456 (E.D. Pa. 2002), J.S. App. 108a.

These two “specific” rights can be condensed into one

right: the right of citizens to receive information subsi-

dized by the government. This right forms the basis for the

decision. This right, however, does not exist.

This is not a case where the government is singling

out any publication for a penalty. This is not a case about

Congress imposing a restriction on libraries regarding

what materials they may provide their patrons. This is not |

even a case about Congress attempting to stop the prolif-

eration of child and illegal pornography. This is simply a

case about Congress choosing what it will and will not

subsidize. No citizen is denied the right to access constitu-

tionally protected material under CIPA.

A. The right does not exist.

The district court’s holding rests on & precarious

foundation. At the heart of the district court’s holding is a

novel right: the right of citizens to receive information

subsidized by the government. This right is almost identi-

cal to the right criticized by Chief Justice Burger in his

dissent in Board of Ed. v. Pico, 457 U.S. 852 (1982), joined

by both Justice Rehnquist and Justice O’Connor. As Chief

Justice Burger’s dissent aptly pointed out, “[njever before

today has the Court indicated that the government has an

obligation to aid a speaker or author in reaching an

audience.” Id. at 888 (1982) (Burger, C.J., dissenting)

(emphasis in original).’ That statement strikes at the very

heart of the issue of this case. While the district court

artfully crafted a forum analysis to justify enforcing the

obligation referenced in Pico, this case is not a typical

forum/free speech case but seeks the recognition of a right

forcing the government to provide access to particular

Internet sites.

It is not hard to see that “a more pressing constitu-

tional question would arise if government funding resulted

in the imposition of a disproportionate burden calculated

to drive certain ideas or viewpoints from the marketplace.”

National Endowment for the Arts v. Finley, 524 U.S. 569,

587 (1998) (internal citation omitted). Such a funding

scheme, designed to eliminate certain viewpoints from

public discourse, is undoubtedly subject to a high level of

scrutiny. Such a tactic by the government may easily rise

. It is important to note that the plurality in Pico did not success-

fully create such a right with precedential value.

to the level of actual interference with protected activity.

But, “[tJhere is a basic difference between direct state

interference with a protected activity and state encour-

agement of an alternative activity consonant with legisla-

tive policy.” Maher v. Roe, 432 U.S. 464, 475 (1977). This

difference lies at the heart of this case. This case is about

state encouragement. In order to transform this case into

a case about state interference with a protected activity,

there must be a constitutional right being infringed.

Under CIPA, websites and websurfers alike are free to

disseminate information and access all of the information

available on the Internet. There is no interference with the

right to disseminate or access information on the Internet.

In order for this case to rise to the level of being an inter-

ference with a protected right, there must be a right for

citizens to receive information subsidized by the govern-

ment. Yet this “fundamental right” is nowhere to be found.

Chief Justice Burger’s dissent in Pico further empha-

sizes the novelty of this “right” by pointing out how ridicu-

lous it would be to hold that the need to have an informed

citizenry “would support a constitutional ‘right’ to have

public libraries.” Pico, 457 U.S. at 888 (Burger, C.J.,

dissenting). Of course, if there is no constitutional right to

have public libraries, as there is not, there can be no

constitutional right to have a library provide access to any

information at all. The government, recognizing that some

content may not be appropriate for a public library, may

simply choose “not to be the conduit for that particular

information.” Jd. at 889. The district court is attempting to

force a judicial override of such a decision by turning a

library into a “slavish courier of the material of third

parties.” Id.

B. Congress may freely pick and choose

which information it will subsidize with-

out violating a constitutional right.

This is not a case where Congress is singling out

publication of particular content for a penalty. See, e.g.,

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221

(1987). A mere “refusal to fund protected activity, without

more, cannot be equated with the iniposition of a ‘penalty’

on that activity.” Harris v. McRae, 448 U.S. 297, 317 n. 19

(1980). CIPA does not ban access to any “ebsites, nor does

CIPA ban websites from publishing their content. Just as

Chief Justice Rehnquist pointed out in his dissenting

opinion in Pico that the right to receive information is not

violated when books are readily available elsewhere, so too

is the right to receive information via the Internet not

violated when the Internet may be accessed in any number

of places, including one’s home, one’s place of employment

or even accessed for free in any number of Internet cafes.

See Pico, 457 U.S. at 915 (Rehnquist, C.J., dissenting).

Everyone in the world may access all of the content

every website has to offer by logging on to the Internet.

Congress is in no way restricting the dissemination of

information, nor is Congress singling out specific content

to be restricted or burdened in the public domain. Thus,

there is no “direct external control” of the general avail-

ability of any Internet websites. Id. at 886 (Burger, C.J.,

dissenting). Congress simply chose to subsidize filtered

Internet access. Congress choosing to subsidize access to

some information, but not other information, does not

create a penalty for websites or library patrons.

This is not a case where Congress is withholding an

independent benefit from a person because that person

exercised a constitutionally protected right. See, eg.,

Sherbert v. Verner, 374 U.S. 398 (1963). This is a case

about Congress refusing to grant a benefit to a person to

finance the person’s exercise of a constitutionally protected

right, which Congress has the power to do. Under the

doctrine of unconstitutional conditions, “the government

may not require a person to give up a constitutional right

... in exchange for a discretionary benefit conferred by the

government where the benefit sought has little or no

relationship to the property.” Dolan v. City of Tigard, 512

U.S. 374, 385 (1994). In unconstitutional conditions cases,

the right and the benefit are separate. See, e.g., Speiser v.

Randall, 357 U.S. 513 (1958) (the right was free speech,

the benefit was a tax exemption); Rutan v. Republican

Party, 497 U.S. 62 (1990) (the right was freedom of asso-

ciation, the benefit was a job); Perry v. Sindermann, 408

U.S. 593 (1972) (the right was free speech, the benefit was

a job).

If the right and the benefit are the same, then it is not

an “unconstitutional condition” case, but rather resembles

Rust v. Sullivan, 500 U.S. 173 (1991). In Rust, the right in

question was the right of doctors and organizations to

disseminate information regarding abortion as a legal

method of family planning. The benefit at stake was

government funding that specifically excluded funding the

dissemination of information regarding abortion. The right

at stake and the benefit were inseparable. When the right

and the benefit are inseparable, the correct inquiry is

whether the government is permitted by the Constitution

to choose what messages it is willing to subsidize. Con-

versely, the inquiry is whether citizens have a right to

force Congress to subsidize their speech when Congress

chooses to subsidize other speech.

While this Court has held “that the government may

not deny a benefit to a person because he exercises a

constitutional right,“ “this Court has never held that

Congress must grant a benefit ... to a person who wishes

to exercise a constitutional right.” Regan, 461 U.S. at 545.

No citizen is entitled to have Congress fund their acquisi-

tion of information, nor is any publisher entitled to have

Congress fund their dissemination of information. Con-

gress may freely pick and choose what messages it will

subsidize within the scope of the project it is seeking to

fund. See Rust, 500 U.S. at 193-94.

It cannot be disputed that Congress is under no

obligation to subsidize the exercise of a constitutional

right. The district court, however, sought to override this

rule by treating Internet access in a library as a constitu-

tional right. Such analysis is flawed. When the govern-

ment provides books, encyclopedias, dictionaries, reference

materials, magazines, newspapers, videos, cassette tapes,

compact discs, albums and electronic media to its citizens

in a library, the government may pick and choose for what

materials it is willing to pay. Even the district court stated

that “generally, the First Amendment subjects libraries’

content-based decisions about which print materials to

acquire four their collections to only rational review.”

American Library Ass’n, 201 F.Supp.2d at 462, J.S. App.

120a. Clearly, the government may subsidize access to

* Regan, Secretary of the Treasury v. Taxation with Representation

of Washington, 461 U.S. 540, 545 (1983) (citing Perry v. Sindermann,

408 U.S. 593, 597 (1972)); see also Speiser v. Randall, 357 U.S. 513

(1958).

whatever information it rationally chooses to provide to its

citizens.

As drafted, CIPA “does not attempt to suppress the

communication of ideas.” New York v. Ferber, 458 U.S. 747,

775 (1982) (O’Connor, J., dissenting). There is no require-

ment for Congress to take an ail-or-nothing approach to

the decision of whether to subsidize Internet access to all

materials on the Internet or subsidize nothing. All-or-

nothing approaches to First Amendment jurisprudence are

generally disfavored. See R.A.V. v. City of St. Paul, 505

U.S. 377, 401 (1992) (White, J., concurring) (O’Connor, J.

and Blackmun, J., joining). To say that Congress, once it

chooses to subsidize Internet access, must subsidize access

to the entire Internet ignores the Court’s holding in Rust.

See Rust, 500 U.S. at 193.

C. Congress defined the scope of its subsidi-

zation project as providing filtered Inter-

net access.

The government, just because it provides a vast array

of information within its library system, does not suddenly

lose the ability to define the scope of the project it is

continuing to fund or subsidize. Otherwise, a library that

provides hundreds of thousands of books, with such a wide

variety of content and viewpoints, would suddenly find

itself facing higher and higher levels of scrutiny and

without the ability to continue to define the scope of

information it is willing to purchase or subsidize for its

citizens. The district court held that the government loses

its ability to define exactly what messages and content it

is willing to subsidize when the amount of information it is

willing to subsidize grows too large. See American Library

Ass'n, 201 F.Supp.2d at 460, J.S. App. 115a. Such a holding

blatantly ignores Congress’ authority to define the scope of

messages it is willing to subsidize.

The scope of the project is the key to this entire case.

Congress is free to define the scope of the project it is

funding; Congress is free to “fund one activity to the

exclusion of others.” Rust, 500 U.S. at 193. Congress is free

to choose not to fund activities beyond the scope of its

project. See id. at 194. Like in Rust, this is “a case of the

Government refusing to fund activities, including speech,

which are specifically excluded from the scope of the

project funded.” Jd. at 195 (emphasis added). If Congress

desires to only fund speech that meets a certain category,

without funding other speech, it may do so while defining

the category of funded speech as narrowly or as broadly as

it would like. Therefore, the esseutial question to be

addressed in this case is: what is the scope of the project?

. Under CIPA, the scope of the project was to subsidize

filtered Internet access. Of course Congress understood

that filtering technology is not perfect. It can be assumed

without question that Congress knew that filtering Inter-

net access would undoubtedly lead to the blocking of

websites containing valid educational materials. However,

Congress simply chose, in light of these obvious circum-

stances, to limit the scope of its subsidization of Internet

access to only filtered access. Congress may have re-

stricted the scope of its subsidization of Internet access

only to websites that end with dot-org or dot-gov or any

other limited set of websites. Such a decision by Congress

would not offend the First Amendment because Congress

is free to choose for what information it will subsidize

access.

Congress is free to “make a value judgment” favoring

a particular type of Internet access over another type of

Internet access and “implement that judgment by the

allocation of public funds.” Maher v. Roe, 432 U.S. 464, 474

(1977). Congress made a value judgment that filtered

Internet access was more beneficial for the general welfare

than unfiltered Internet access. It does not matter

whether the filtering program is perfect or flawed. It does

not matter if the filtering program blocks hundreds or

even millions of websites that contain educational speech.

As long as Congress is paying for the Internet access,

Congress can choose the category of information to which

it is willing to subsidize access. Congress chose filtered

Internet access. Therefore, Congress may implement its

judgment by only funding filtered Internet access. If the

library wants unfiltered Internet access, the library can

simply choose not to participate in Congress’ subsidization

program.

Congress’ solution to the proliferation of child and

illegal pornography on the Internet does not have to be

perfect. Congress does not have to wait until there is a

filtering program available that blocks all information

harmful to minors, obscenity and child pornography while

never blocking a single website containing constitutionally

protected speech.” “A statute is not invalid under the

* It is not difficult to imagine that even if technology was available

that would perfectly filter Internet access to the satisfaction of the

district court in this case, some plaintiffs would invoke the argument

that such filtering is not good enough because it is too broad. They —

might argue that it is necessary to have filtering programs that filter

each word on each individual page such that even a child pornography

webpage could be accessed, with only the very specific offending words

(Continued on following page)

Constitution because it might have gone farther than it

did, or because it may not succeed in bringing about the

result that it tends to produce.” Roschen v. Ward, 279 U.S.

337, 339 (1929). CIPA is not a perfect solution, but it is a

solution well within the power of Congress to create.

Plaintiffs have ample access to the more complete

Internet access they seek. There is, however, no constitu-

tional right to force municipalities and other local govern-

ments to subsidize their Internet desires. Such a new

“right” would, in fact, dramatically weaken the authority

of municipalities and locally elected officials over their

libraries.

II. MUNICIPALITIES CANNOT EFFECTIVELY

FUND AND PROVIDE LIBRARIES TO THEIR

CITIZENS IF STRICT SCRUTINY IS TO BE

APPLIED TO THEIR DECISIONS OVER WHAT

GOES INTO THE LIBRARY.

The district court was careful to point out that the

right at issue was not whether there is a “First Amend-

ment right to compel public libraries to acquire certain

books or magazines for their print collections.” American

Library Ass’n, 201 F.Supp.2d at 456, J.S. App. 108a. The

court even stated that the First Amendment subjects

libraries’ content-based decisions about which print

materials to acquire for their collections to only rational

review.” Id. at 462, J.S. App. 120a. We agree. The district

and parts of the pictures blacked out, leaving all of the “constitutionally

protected speech” on the page untouched. The picture of the child’s face

would be viewable, for example, with only the clear offending content of

the photograph blacked out.

court, however, applied strict scrutiny to information

acquired by the library via the Internet.

A. There is no distinction between printed

speech and speech on the Internet.

The district court pointed out that the Internet is open

to anyone that wishes to be a town crier. Yet, this is true of

letters to the editor sections of magazines and newspapers.

Without question, newspapers receive a considerable

amount of protection and enjoy a vast expanse of freedom

to print what they choose to print.’ If the library may pick

and choose which newspapers and magazines to which it

will subscribe with only rational basis review, then it is

baffling why a library may not pick and choose which

electronic messages it is willing to allow to pass through

its front door without extreme judicial oversight under

strict scrutiny.

There seems to be some confusion regarding the

operation of the Internet that caused the district court to

apply a completely different standard of judicial review to

the Internet than it would to printed material. There is a

sense from the district court’s opinion that the fact that

anyone may publish a website, publish information on

message boards and engage in endless chat room conver-

sations on an immeasurable number of topics somehow

* Lovell v. Griffin, 303 U.S. 444, 452 (1938) (“The in its

historic connotation compechends qvery cert of publisntion which

affords a vehicle of information and opinion. What we have had recent

occasion to say with respect to the vital importance of protecting this

SES, EN Gum crm cut of tatingument asad ast be so-

distinguishes the Internet from the print media. Such a

conclusion ignores the obvious.

On the Internet, message boards have moderators,

which act as censors blocking any speech that is deemed

inappropriate for the message board. Thus, on + sports-

related message board, a discussion of politics will be

deleted by the moderator. This is exactly what happens in

the print media. A discussion of politics in a letter to the

editor for Sports Illustrated would not be published. On

the other hand, there may be a political publication that

would not print a letter to the editor or an article related

to sports. Some websites ban profanity and pornography

while other websites promote such things, just as some

magazines and books contain no profanity or pornography

by design and some magazines and books promote profan-

ity and pornography as their main topics. In addition, any

person may start a publication, newsletter, or write a book

that could eventually make its way to the library, much

the same way any person may create a website and pub-

lish information.

If a library, as the district court admits, may use any

rational criteria for choosing to stock some printed materi-

als rather than others, a library should also be able to pick

and choose which electronic materials it is willing to stock

for its patrons with the same standard of review. Thus, if

the library wants to stock Sports Illustrated but chooses

not to stock other publications, a court will not inquire into

that decision any deeper than to assess whether the

library could have had any rational reason for excluding

Time, Hustler, Playboy, the NAMBLA Bulletin’ or any

other publication.

The world of printed speech is extremely vast. There

are millions of publications available for a library to

choose when determining what materials it would like to

make available to its patrons. The library, for any rational

reason, may choose to acquire some materials for its

patrons, but not other materials. Some of these decisions

may be based on a value judgment; some of these decisions

may be based on economic considerations. Libraries enjoy

the right to exclude a vast number of speakers from their

collections without significant judicial inquiry. To apply

strict scrutiny to the exclusion of the very same speakers

because they are speaking through an electronic forum is

absurd.

Under the lower court's rationale, if a library chose

not to subscribe to the NAMBLA Bulletin, which a library

could do for any number of rational reasons, that same

library would be unable to filter the electronic version of

that same publication on the Internet without facing

heightened judicial scrutiny. Yet, the exclusion is for the

very same publication. The district court failed to ade-

quately explain why the electronic version of a publication

deserves greater protection than the printed version. Such

a distinction does nothing more than trivialize the First

Amendment by creating a meaningless distinction for

speech in an electronic format.

" The NAMBLA Bulletin is the official publication of the North

by the

B. The prior review distinction drawn

aoe court between printed materials

and electronic materials on the Internet

is invalid.

The lower court theorized that library content-based

restrictions on their materials other than the Internet are

not subject to strict scrutiny because the library exercises

“editorial discretion.” This assumes the library reviews all

materials before it provides them to the public. It is

unreasonable to believe that any library reads an entire

encyclopedia set before placing it on the shelf. Thus, the

very foundation of this distinction is invalid.

Libraries, and indeed the municipalities that princi-

pally fund libraries, do not review all print materials that

enter their libraries . Such a task would be daunting on an

unparalleled scale. The city of Cerritos, California, for

example, receives 30,000 new books, CD-ROMs, DVDs,

books on tape and books on compact disc every year, not

including numerous magazine and newspaper subscrip-

tions. Yet, the city only employs twenty-two full-time and

five half-time librarians. It is not only preposterous to

suggest that the limited library staff reviews all 30,000

individual materials brought into the library each year, it

is physically impossible to do so.

Librarians must field numerous requests for help

finding materials, check-out books for patrons, re-stock

library shelves, catalogue and shelve new materials,

* American Library Ass'n, 201 F.Supp.2d at 464, J.S. App. 125a.

* Amicus Mayor Bruce Barrows is the mayor of the City of Cerritos,

Californi

collect late fees, organize activities for children, conduct

library tours, coordinate the use of library space by outside

groups, assist patrons with Internet access and process

library card applications. Even if all twenty-seven Cerritos

librarians spent every working hour reviewing materials

without ever attempting to fulfill their mission of actually

running the library, they still could not give even a cursory

review of all 30,000 materials each year. Libraries abso-

lutely do not review all tangible materials before they are

placed for use by the public. In many cases, the libraries

and municipalities that fund and run them rely on other

peoples’ opinions or simply do not know the content of

many materials on the shelves. The prior review distinc-

tion attempted for suddenly applying strict scrutiny to

subsidized Internet access is untenable.

C. Lessening governmental prior review of

private speech should lessen, not raise,

the standard of scrutiny.

The more government involves itself in making

decisions regarding what speech will be allowed and what

speech will not be allowed, the more judicial scrutiny is

heightened. When prior review by the government is

required before speech may be freely disseminated, there

is a concern that a byproduct of such prior review is a

chilling effect on speech. A court should view prior review,

just like prior restraint, with much skepticism; “[aJny

system of prior restraints of expression comes to this

Court bearing a heavy presumption against its constitu-

tional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S.

58, 70 (1963). It is surprising that the lower court would

reason that when libraries engage in prior review, they are

subject to only rational basis, but when they do not engage

in prior review on the Internet, they are subject to strict

scrutiny.

The court was correct in the first part of its analysis -

libraries make content-based decisions on which materials

come into their doors everyday. These decisions are not

subject to strict scrutiny, or libraries could not function

and would be subject to a litigation frenzy. Applying a

stricter scrutiny to government decisions because there is

less government editorial and prior review of materials

makes no sense.

MMUNI-

III. MUNICIPALITIES AND LOCAL CO

TIES, NOT COURTS, SHOULD MAKE THE

DECISIONS ABOUT WHAT MATERIALS

SHOULD BE IN THEIR LOCAL LIBRARIES.

This is not a case about whether Congress may impose

a filtering requirement, but is a case about whether

municipalities have the choice to impose a filtering re-

quirement on the Internet access they provide through

their public libraries. The decision below, if affirmed, will

bar all municipalities and other local officials from filter-

ing in their libraries.

A. This case is an attempt by libraries to use

courts to override the local authority of

municipalities that create, fund, and set

policy for the libraries.

The library does not enjoy total autonomy in making

decisions. The local governments of municipalities have

the power to create criteria used by the libraries for

certain decisions a library makes, including criteria used

for the acquisition of materials for the library's collection.

Municipalities want to retain the right to choose the

criteria their libraries will use in assessing all material

made available to library patrons. The district court

effectively took that right away by declaring Internet

access in a public library to be a public forum where

governmental regulation is viewed under strict scrutiny by

our courts.

Chief Justice Burger’s dissent in Pico warned of the

court becoming a “super censor,” interfering with local

control of a school library. Pico, 457 U.S. at 885 (Burger,

C.J., dissenting). Such a warning must be heeded in the

present case. Libraries are built, staffed and filled with

materials because local communities, through their elected

representatives, choose to spend their tax dollars on such

an endeavor. The libraries are built and maintained for

the community, by the community. Their very existence is

local in nature. The district court’s decision strikes at the

very heart of this traditionally local endeavor by wresting

control away from local municipalities and appointing

courts as “super censors” of local decisions concerning

whether to knowingly provide child pornography, obscenity

and materials harmful to minors.

This case is anomalous to say the least. The library

plaintiffs in this case ask this Court to rule that they are

in violation of the Constitution if they filter. This bizarre

claim is all the more puzzling since the libraries seek an

opinion limiting their freedom to make decisions regarding

what materials they are willing to provide their patrons.

Such a tactic suggests that these plaintiff libraries and

library associations are attempting to use this case and

use the Court to advance their views and agenda on the

unwilling populace and local governments who have

authority over them.

Municipalities have the ultimate control and final say

of library policy. Officials, elected by the citizens of their

local community, make decisions regarding library policy

and what materials they are willing to provide their

citizens. If citizens are unhappy with their decisions, such

as the decision to filter Internet access in the library, the

citizens are free to choose another leader or set of leaders

through the democratic process. The library associations

and library plaintiffs in this case are seeking to circum-

vent this democratic process and insert the Court as a

barrier between them and the municipalities that govern

them.

If this were not the case, then the libraries and library

associations that are plaintiffs in this case would not have

claimed that CIPA’s filtering requirement is an unconsti-

tutional condition. If it is unconstitutional for the federal

government to subsidize filtering, then it also becomes

unconstitutional for the municipality to require filtering.

The opinion below strikes at the very heart of local control

and the authority of local citizens and their representative

government.

B. Many Municipalities will choose to stop

providing Internet access if forced to

provide unfiltered Internet access.

As stated by this Court on a number of occasions, it is

the goal of the First Amendment “to secure the wide: t

possible dissemination of information.” Buckley v. Valeo,

421 U.S. 1, 49 (1976) (internal citations omitted). At first

blush, it may seem to be the case ae this T =

i affirming the district court’s opinion. However,

aoa the case. If this Court affirms the district

court’s opinion, it will reduce Internet access in many

communities. Many mayors, county commissioners and

municipalities, including the ones represented in this

brief, will provide no Internet access at all rather than

provide unfiltered Internet access that includes child

pornography and obscenity.

Amicus City of Muskego, Wisconsin, for example, is

adamant that should it lose the ability to filter out child

pornography, it would immediately stop funding the T-1

line, resulting in all thirty computer stations in its library

losing their connection to the Internet. The City of Tyler,

Texas,” when it first decided to provide Internet access,

did so on the condition that it would stop immediately if

filtering was ever stopped. All of the mayors, county

commissioners and cities represented in this brief would

immediately move to shut down Internet access if the

lower court’s decision were affirmed.

A decision that only unfiltered access is allowed would

eliminate the choice of what type of Internet access a

municipality could provide. The district court seemed to be

motivated by the concept that filtering Internet access

somehow restricted the free flow of information. Consider-

ing that the free flow of information is a positive aspect of

a free society, it is important to promote the widest dis-

semination of ideas and information as possible. Increas-

ing the number of choices for municipalities with regard to

the type of Internet access they provide in their libraries is

consonant with this aspiration. If the Court chooses to ban

filtering as a tool for governmental entities to use to keep

* Amicus Mayor Joseph O. Seeber is the mayor of the City of Tyler,

Texas.

child pornography and obscenity out of the public library,

then many municipalities will be left with no choice but to

take drastic steps to choke off all electronic discourse in

the public library.

It is the responsibility and power of local governments

to choose the approach most effective in protecting their

communities, not one district court solution mandating an

approach for the whole country. If a group of plaintiffs

asserting a new right to government subsidized access to

Internet sites can strip a city of its ability to keep itself

from promoting child pornography, then representative

local government is weakened, whereby libraries, by filing

a lawsuit in a court, can usurp the very city that gave

birth to it in the first place. Municipalities will be left with

no other alternative but to shut off access or choose to

knowingly provide access to child pornography, material

harmful to minors and obscenity. Many, including amict,

will choose to shut off access.

IV. THERE ARE NUMEROUS RATIONAL BASES

FOR KEEPING PORNOGRAPHY OUT OF THE

PUBLIC LIBRARIES.

Local communities have many rational bases for

filtering. Research has uncovered that “child molesters

often use pornography to seduce their prey, to lower the

inhibitions of the victim, and to serve as an instruction

manual.”"” Seventy-seven percent of convicted child

“ Marshall, W.L., Ph.D., Pornography and Sexual Offenders, in

PORNOGRAPHY: RESEARCH ADVANCES AND POLICY CONSIDERATIONS 189 (D.

Zillmann & J. Bryant eds., 1989); Dr. Marshall's Curriculum Vitae is

available at http://www.rockwoodpsyc.com/cv-bill.html.

molesters that molested boys and eighty-seven percent of

convicted child molesters that molested girls in one study

admitted to the regular use of hard-core pornography,

material readily available on the Internet with no filtering

system.” Many cities and communities desire to protect

the children of their communities by choosing not to pay

for the tools of the trade for child molesters. Their com-

munities may consider providing free Internet access to

child and other illegal pornography to be indistinguishable

from actually promoting such criminal activity. A ruling

that strips the right of local government to choose not to

subsidize such criminal and extremely dangerous behavior

would endanger millions of children since the local gov-

ernment, the bastion of law and order in every community,

would be unable to choose its most effective means to

protect its citizens.”

Many cities will act because innocent children are

targeted by obscene pornographic websites that seek to

expose themselves to unwitting children who are attempt-

ing to use the Internet for legitimate educational research.

A child that is seeking to log on to www.whitehouse.gov,

the official White House website, in order to view a video

* MARSHALL, W.L., PH.D., A REPORT ON THE USE oF PORNOGRAPHY

BY SEXUAL OFFENDERS (Ottawa, Canada, Federal Department of

Justice, 1983).

" While Appellees offer other approaches, such as a “tap on the

shoulder,” the government need not negate the effectiveness of other

solutions. See Board of Trustees of the Univ. of Ala. v. Garrett, 531 U.S.

356, 367 (2001) (internal citation omitted) (“Where rational-basis

scrutiny applies, the State need not articulate its reasoning at the

, moment a particular decision is made. Rather, the burden is upon the

challenging party to negate any reasonably conceivable state of facts

that could provide a rational basis for the regulation.”).

of Barney, the President’s dog, romping around the White

House, is in for an extremely vulgar surprise if she instead

types www.whitehouse.com, which is a hard-core porno-

graphic website extremely harmful to minors. To rule that

municipalities are powerless to choose not to fund access

to such intentional traps for the unwary youth when

attempting to simply provide access for a child-friendly

view of the White House would be egregious.

The proliferation of obscenity has a detrimental impact

on a local community. Oklahoma City, for example, chose to

do something about their rising incidence of rape by closing

over 150 sex-oriented businesses (peep shows, massage

parlors, bookstores, theaters, etc.) from 1983 to 1988.

During that span of five years, the incidence of rape in

Oklahoma City decreased by 26%. During that same period,

the incidence of rape increased 20.8% throughout the entire

state. Municipalities need the local controi necessary to

affect change in their communities by reducing the factors

that put women at a high risk for sexual violence. Such

local control includes having the power to choose not to pay

for access to the very obscenity it is trying to combat to save

the lives of women in the community.

- Even the federal government agrees that “empirically

verifiable connections have been established between

illegal pornography and violent sex related crimes, includ-

ing the rape of women and molestation of children.”” A

“ OKLAHOMA STATE BUREAU OF INVESTIGATION, RAPE STATISTICS —

OKLAHOMA CITY VS. BALANCE OF OKLAHOMA, 1983-1988.

“ U.S. DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, BEYOND THE

PORNOGRAPHY COMMISSION: THE FEDERAL RESPONSE (Washington, DC:

GPO, July 1988), p. iv.

—

study of sex offenders reported that fifty-six percent of the

rapists and 42 per cent of the child molesters in the

sample said that pornography played a role in their

offenses." Even this Court has recognized the harmful

effects of pornography on children. See Ferber, 458 U.S. at

758; FCC v. Pacifica Foundation, 438 U.S. 726, 757-58

(1978).

Local municipalities, being the smallest form of

government in this country and most sensitive to the

needs of their unique communities, are in the best position

to determine the type of Internet access they will provide

for their citizens. Local government is uniquely positioned

to significantly impact the welfare of women and children.

This Court should not stifle the ability of municipalities to

protect vulnerable members of society from sexual preda-

tors. There are many rational bases which could lead

municipalities to choose to filter Internet access in the best

interests of their community. The decision below should be

reversed.

Abel, G., in EINSIEDEL, E.F., SOCIAL SCIENCE REPORT. PREPARED

FOR THE ATTORNEY GENERAL’S COMMISSION ON PORNOGRAPHY, U.S

DEPARTMENT OF JUSTICE (Washington, D.C., 1986). eer

CONCLUSION

Cities, mayors, county commissioners and other local

officials should be free to choose the type of Internet access

they will subsidize. There is no individual right for citizens

to compel government to finance their Internet desires.

The lower court’s opinion, based on a non-existent right,

destroys the choices local communities may make concern-

ing their Internet access in their libraries. The decision

below should be reversed.

Respectfully submitted,

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER III

LIBERTY LEGAL INSTITUTE

903 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

Counsel for Amicus Curiae

January 10, 2003

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.