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

No. 02-361

IN THE

Supreme Court of the United States

UNITED STATES, et a/.,

Appellants,

v

AMERICAN LIBRARY ASSOCIATION, INC., ef al,

Appellees.

Ow APPEAL FROM THE UNiteD States District Court

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Brite oF Amicr Curse ASSOCIATION OF AMERICAN PUBLISHERS,

Inc., AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION, AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS,

AMERICAN SOcCteETY OF NEWSPAPER Epitors, AUTHORS

Guitp, Inc., CENTER FOR DEMOCRACY AND TECHNOLOGY,

Comic Book Lecat Derense FuND, MAGAZINE PUBLISHERS OF

AMERICA, NATIONAL WRITER’S UNION, PUBLISHERS MARKETING

ASSOCIATION, PEN AMERICAN CENTER, AND SOCIETY OF

PROFFSSIONAL JOURNALISTS IN SUPPORT OF APPELLEES

Of Counsel: 2 Beuce Riri

PAULA BRUENING Counsel of Record

/ J

Joun B. Morris, Jr. JONATHAN BLoom

A.a~ B. Davipson Wei, GotsHaL & Mances LLP

CENTER FOR DEMOCRACY 67 Fifth Avenue _

& TECHNOLOGY New York, NY 10153

J

. sib. _

1634 I Street, N.W., Suite 1100 (212) 310-8000

Washington, D.C. 20006

(202) 637-9800

Attorneys for Amici Curiae

————

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ............ iii

INTRODUCTION AND INTEREST OF

Sc ec dedeehdeeheeneaeessens os l

SUMMARY OF ARGUMENT ................. 3

ET cedecuhdetdhesséededendensesess 5

I THE INTERNET FURTHERS THE

PURPOSE OF LIBRARIES IN FOSTERING

FREEWHEELING INQUIRY ............ 6

Il FORUM ANALYSIS APPLIES TO THE

PROVISION OF INTERNET ACCESS IN

PES EEE ov ccdcscdcoveesces 9

A. Internet Access in Public Libraries Is a

Designated Public Forum ........... 9

B. Appellants’ Claim That Internet Filtering

Is No More Subject to Judicial Scrutiny

Than Library Collection Development Is

Dt Epeiuteckereseccevabceaees 12

Il. CIPA MUST, BUT CANNOT, SURVIVE

DE EEE 6c cccnccccdcosecess 15

A. Reasonableness Review Does Not

Apply, as Internet Filters Regulate

Speech That Is Consistént With the

Purposes of the Forum ............. 15

il

Contents

Page

B. CIPA Is Not Narrowly Tailored to Serve

the Government’s Interest in Preventing

the Dissemination of Obscenity, Child

Pornography, and Material Harmful to

eee 16

C. Appellants Have Not Shown That Less

' Restrictive Alternatives Would Not

Advance the Government’s Interest ... 23

eee s Pee! 27

APPENDIX — THE AMICI ................45. la

ui

TABLE OF CITED AUTHORITIES

Page

Cases: ’

American Library Ass'n, Inc. v. United States, 201

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

Armstrong v. District of Columbia Pub. Library, 154

F. Supp. 2d 67 (D.D.C. 2001) .... 2... 6. eee e 12

Board of Educ., Island Trees Union Free Sch. Dist.

No. 26 v. Pico, 457 U.S. 853 (1982) .......... 6

Cornelius v. NAACP Legal Defense & Educ. Fund,

BR, SIS Ue FED CEDEOD ccccccccccccccccecs 10, 16

Denver Area Educ. Telecommunications Consortium,

Inc. v. FCC, 518 U.S. 727 (1996) ............ 21

FCC v. League of Women Voters of Cal., 468 U.S.

EEE EEO EP PTET TTT TTT 20-21

Hawkins v. City & County of Denver, 170 F.3d 1281

DT cesbSbedeeeesedeccececocces 12

Kreimer v. Bureau of Police for Town of Morristown,

958 F.2d 1242 (3d Cir. 1992) .............. 7, 10, 12

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

ELLE SEES PE CP POOP OTT TT TTT TT 21

Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001)

ELE LESLIE eee Te TT TT TTT TTT TT 20

Mainstream Loudoun v. Board of Trs. of Loudoun

County Library, 24 F. Supp. 2d 552 (E.D. Va.

Di Pe PCESeGeeeeececesccecceesccces 11

iv

Cited Authorities

Page

Minarcini v. Strongsville City Sch. Dist., 541 F.2d

Pee SEED scteseusecéddnctscbuanes 7

Neinast v. Board of”... of Columbus Metro. Library,

190 F. Supp. 24 '*40 (S.D. Ohio 2002) ....... 12

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

ET concécedcéccdtiesisadas 9, 10, 16

Reno v. American Civil Liberties Union, 521 U.S.

PE scndéncddwaddebadniekoiaatn passim

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819 (1995)... oes. sascoodag

Sable Communications of Cal., Inc. v. FCC, 492 U.S.

DED atedundcdeddssubensunciieeiasas 16, 17

Schneider v. New Jersey, 308 U.S. 147 (1939) .... 22

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

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

HENGE Ktncddseneceonsetséendtesusenkes 22

Sund v. City of Wichita Falls, Tex., 121 F. Supp. 2d

PGE HEED cocccnceuctodeveccceee 12

United States v. Playboy Entm t Group, Inc., 529 U.S.

RD s Giadeuadnsnmuseanbdudinn teed passim

Young v. American Mini Theatres, Inc., 427 U.S. 50

Gee 6 coennucdbcuvcesesecéscnechuacundes 2

Vv

Cited Authorities

United States Constitution:

Statutes:

20 U.S.C. § 9101, ef seg... 2... ee cee eee eee

47 U.S.C. § 254 ... 2... cece cece cece ecweceeees

Pub. L. No. 106-554, Div. B, Tit. XVII, 114 Stat.

Ce a a as passim

Other Authorities:

American Library Association, Libraries & the

Internet Toolkit, available at http://www.ala.org/

alaorg/oif/internettoolkit.html .........-.----- 8, 23

American Library Association, Freedom to Read

Statement, available at http://www.ala.org/alaorg/

oifffroerend btm... wwe cece cece ccccccccess

Bernard W. Bell, Filth, Filtering, and the First

Amendment: Ruminations on Public Libraries’

Use of Internet Filtering Software, 53 Fep. Com.

LJ. 198 C2ODI) 2. nc cccccccccccccccccccess

John Carlo Bertot et al., Public Libraries and the

Internet 2000: Summary Findings and Data

Tables, National Commission on Libraries and

Information Sciences, available at http://

www.nclis.gov/statsurv/2000plo.pdf ..........

vi

Cited Authorities

Page

John Carlo Bertot et al., 1996 National Survey of

Public Libraries and the Internet: Progress and

Issues, National Commission on Libraries and

Information Sciences, available at http://slis-

two.lis.fsu.edu/~cmcclure/nsp196/

PE, SEED vbébeceenncsddcécneuaedeees 15

Commission on Child Online Protection, Report to

Congress (Oct. 20, 2000), available at http://

www.copacommission.org/report ............. 23-24

BENJAMIN FRANKLIN, THE AUTOBIOGRAPHY OF BENJAMIN

DE ccssududcdecnusndésececeseuh 6

Marjorie Heins & Christina Cho, /nternet Filters: A

Public Policy Report, National Coalition Against

Censorship (Fall 2001), available at http://

www.ncac.org/issues/internetfilters.html ...... 13, 20

National Academy of Sciences, Youth, Pornography,

and the Internet (May 2002) ................ 24

M.J. Rose, Stephen King, the E-Publisher, Wirep

News, June 11, 2000, at http://www.wired.com/

news/culture/0,1284,36915,00.htm] .......... 8

l

INTRODUCTION AND INTEREST OF THE AMICT'

Amici Association of American Publishers, Inc., American

Booksellers Foundation for Free Expression, American Society

of Journalists and Authors, American Society of Newspaper

Editors, Authors Guild, Inc., Center for Democracy and

Technology, Comic Book Legal Defense Fund, Magazine

Publishers of America, National Writer’s Union, Publishers

Marketing Association, PEN American Center, and Society of

Professional Journalists are organizations whose members —

including writers, editors, book and magazine publishers, and

booksellers — have a profound interest in the vigorous exercise

of their own First Amendment rights as well as those of the

reading public.? Amici’s members are responsible for providing

the reading public with ideas and information in every literary

genre, both in traditional print media and, increasingly, over

the Internet. As such, amici are concerned with safeguarding

the ability of library patrons to access online the full range of

the constitutionally protected materials that they write, publish,

market, distribute, and sell.

As representatives of entities and individuals that both

depend upon and sustain the rights guaranteed by the First

Amendment, amici have long fought to safeguard those nghts

as they pertain to creators, distributors, and recipients of

expressive works against abridgement by government, including

attempts to censor content on the Internet. The Children’s

Internet Protection Act (CIPA) represents the government’s latest

attempt to muzzle the uniquely powerful communicative

medium that is the Internet. Amici submit this brief in support

1. Pursuant to Rule 37.6 of the rules of the Court, counsel for the

amici discloses that counsel for the parties did not take part in authoring

this brief in whole or in part, and no persons or entities other than the

amici, their members, or their counsel made a monetary contribution to

the preparation or submission of this brief. Pursuant to Rule 37(3)(a),

amici have obtained, and are herewith lodging, the written consents of

the parties to the filing of this brief.

2. Amici are more fully described in the Appendix.

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of Appellees’ effort to invalidate Congress’ constitutionally

insensitive attempt, through CIPA, to condition the receipt of

federal funds by public libraries on the implementation of

censorship in the form of Internet filtering. In doing so, amici

seek to vindicate “the central concern of the First Amendment

... that there be a free flow from creator to audience of whatever

message [an expressive work] might convey.” Young v. American

Mini Theatres, Inc., 427 U.S. 50, 77 (1976) (Powell, J.,

concurring).

The vast majority of public libraries in this country have

embraced the Internet as a cost-effective means of dramatically

expanding the amount of information available to their patrons.

In providing Internet access, public libraries have created

designated public fora for expressive activity. Consistent with

the First Amendment, content-based regulation of that

expressive activity can only be carried out in a manner that can

survive strict scrutiny, which CIPA’s mandated filtering cannot.

The district court’s exhaustive factual findings convincingly

document the conclusion that mandated filtering of Internet-

enabled computers in public libraries is an ill-conceived means

of preventing library patrons from accessing child pornography,

obscenity, and, in the case of minors, material that is “harmful

to minors.” The unavoidable suppression by filtering software

of valuable, constitutionally protected expression, such as that

created by many of amici’s members, covering a vast range of

essential subjects, from sexuality to politics, demonstrates that

CIPA is not a narrowly tailored means of advancing Congress’

goal of ensuring that library computers are not used to access

unprotected sexual material.

While amici are sensitive to the desirability of shielding

both minor and adult library patrons from unlawful images,

Congress cannot seek to achieve that goal using that

subvert the very purpose of offering Internet access to library

patrons by suppressing protected expression.

Appellants’ characterization of CIPA as merely giving

libraries a means to exercise “broad discretion to make content-

3

based judgments in selecting material for their collections,”

in the same manner as they decide whether to acquire particular

books, is misguided. App. Br. at 12. In reality, CIPA deprives

local libraries of the discretion to determine appropriate

guidelines for Internet usage. CIPA takes such decisions away

from libraries and delegates them to software filtering companies

whose proprietary criteria for blocking material are completely

hidden from public scrutiny. This is in no way analogous to a

decision by librarians to acquire a book on Mark Twain rather

than one on rap music, for example. It is, instead, analogous to

the scissoring by 2 government contractor of important articles

from a magazine to which the library subscribes and to which

library patrons expect full access.

The autonomy interests of local communities are ill-served

by the choice with which CIPA, as a practical matter, presents

many of them: offering no Internet access, on the one hand, or

offering it only as radically abridged by third-party censors, on

the other. The Constitution does not permit Congress to impose

this unpalatable choice. The less restrictive alternatives

catalogued by the district court, several of them recommended

by two government studies, permit local communities and their

public libraries to establish policies governing Internet usage

by children and adults while making available the vast resources

of the Internet for those who may rely on libraries as their only

means of Internet access.

Because of these infirmities, amici urge the Court to affirm

the district court’s ruling that CIPA is an unconstitutional

exercise of Congress’ spending power.

SUMMARY OF ARGUMENT

As this Court has recognized, the Internet has become a

modern-day publishing house, with immense amounts of

material available twenty-four hours a day, and more content

being added by the second. From the largest newspapers to the

most unknown individuals, the Internet has become a preeminent

means of distributing information throughout the world. The

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vast majority of public libraries in the country have embraced

the Internet, which dramatically enhances their ability to make

ideas and information available to their patrons. The Children’s

Internet Protection Act, which conditions certain federal funding

on the mandatory use of Internet filters by public libraries, would

severely diminish the capacity of library patrons to access

constitutionally protected materials via the Internet.

The district court correctly concluded that a public library’s

provision of Internet access constitutes a designated public

forum and that CIPA’s content-based restrictions on that forum

are subject to strict scrutiny. Appellants’ attempt to avoid public

forum analysis by analogizing Internet filtering to a library’s

collection development practices is flawed. By arguing that a

library has broad discretion in determining which books and

magazines to include in its collection and should have the same

discretion to filter the Internet, Appellants mischaracterize the

effect of CIPA, which in fact deprives libraries of discretion to

establish Internet use guidelines. Moreover, several key

differences between a library’s traditional collection

development practices and its provision of Internet access, such

as the lack of editorial judgment involved in providing Internet

access in a library, undermine Appellants’ strained analogy.

Appellants also err in claiming that even if a library’s

provision of Internet access is a designated public forum, only

reasonableness review should apply. Libraries have decided to

provide unfiltered Internet access to their patrons for expressive

activity, and CIPA regulates expressive activity that is consistent

with that forum. As such, Appellants carry the burden of

demonstrating that CIPA is narrowly tailored to serve a

compelling government interest using the least restrictive means.

This is a burden Appellants cannot meet. As the district court

correctly determined, in attempting to restrict obscenity, child

pornography, and material harmful to minors — the targets of

CIPA — Internet filters block substantial amounts of

constitutionally protected material, ranging from World Wide

Web sites devoted to the Bible to sites addressing health-related

5

issues. Additionally, numerous less restrictive alternatives,

including Internet usage policies and more flexible filtering

schemes, are available. Appeliants have failed to demonstrate

that these alternatives would be less effective than mandated

Internet filters on all library computers. Accordingly, CIPA must

be struck down because it would cause libraries to violate the

First Amendment rights of library patrons.

ARGUMENT

In 2000, Congress enacted the Children’s Internet Protection

Act (CIPA), Pub. L. No. 106-554, Div. B, Tit. XVII, 114

Stat. 2763A-335, which requires that in order to receive

grants under the Library Services and Technology Act, 20 U.S.C.

§§ 9101, et seg. (LSTA), and “E-rate” discounts under the

Telecommunications Act of 1996, 47 U.S.C. § 254, public

libraries must certify that on every Internet-enabled computer

(whether or not purchased with government funds), 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. § 9134(f)(1)(A) (LSTA); 47 U.S.C.

§§ 254(h)(6)(B) & (C) (E-rate). See also American Library

Ass'n, Inc. v. United States, 201 F. Supp. 2d 401, 406-07 (E.D.

Pa. 2002). In other words, CIPA mandates Internet filtering by

public libraries as a condition of receiving sorely needed federal

funding for computers, equipment, and Internet access.

The three-judge district court panel unanimously invalidated

CIPA as an unconstitutional exercise of Congress’ power under

the Spending Clause on the ground that it requires libraries to

violate the First Amendment rights of their patrons as a condition

of receiving federal funds. American Library Ass'n, 201 F. Supp.

2d 401. See also South Dakota v. Dole, 483 U.S. 203, 207-08

(1987) (Congress’ spending power is subject to restrictions,

including a bar on funding conditions that induce the recipient

to violate constitutional provisions). In so holding, the court

below rejected the government’s claim that CIPA’s filtering

requirement should be subject only to rational basis or .

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reasonableness review. Instead, applying strict scrutiny, the court

held that CIPA is not narrowly tailored, in part because all

currently available filtering software necessarily blocks a

substantial amount of material that is not obscene, child

pornography, or harmful to minors. The court also found that

the existence of less restrictive alternatives to filtering rendered

CIPA unconstitutional. As explained below, the district court

was correct in all respects.

I. THE INTERNET FURTHERS THE PURPOSE OF

LIBRARIES IN FOSTERING FREEWHEELING

INQUIRY

CIPA must be evaluated in light of the mission of libraries

and the relationship of Internet access to that mission. Public

libraries in America for centuries have played a special role in

the circulation of ideas, the education of the citizenry, and the

promotion of enlightened discourse. The roots of this tradition

trace to Benjamin Franklin, who in 1731 founded the first

subscription library in the American colonies. In his

autobiography, Franklin extolled the achievements of the

nation’s libraries: “These libraries have improved the general

conversation of the Americans, made the most common

tradesmen and farmers as intelligent as most gentlemen from

other countries, and perhaps have contributed in some degree

to the stand so generally made throughout the colonies in defense

of their privileges.” BENJAMIN FRANKLIN, THE AUTOBIOGRAPHY OF

BENJAMIN FRANKLIN (1793) (cited in Bernard W. Bell, Filth,

Filtering, and the First Amendment: Ruminations on Public

Libraries’ Use of Internet Filtering Software, 53 Fep. Comm.

L.J. 191, 220 (2001)).

No less so than in the eighteenth century, public libraries

today embody and further the free expression and freedom of

thought and inquiry that are protected by the First Amendment.

As federal courts have noted, a public library is a place of

“freewheeling inquiry,” Board of Educ., Island Trees Union Free

Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 915 (1982) (Rehnquist,

J., dissenting), a “mighty resource in the free marketplace of

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ideas,” Minarcini v. Strongsville City Sch. Dist., 541 F.2d 577,

582 (6th Cir. 1976), and the “quintessential locus of the

receipt of information,” Kreimer v. Bureau of Police for

Town of Morristown, 958 F.2d 1242, 1255 (3d Cir. 1992).

The district court in this case observed that public libraries

“generally share a common mission — to provide patrons with a

wide range of information and ideas.” American Library Ass'n,

201 F. Supp. 2d at 420.

This mission has benefited enormously from the virtually

limitless resources that the Internet has made available at

the touch of a button to library patrons throughout the country.

More than ninety percent of the nation’s public libraries now

provide public access to the Internet, and many of these libraries

allow patrons to explore this virtual encyclopedia with few

restrictions. American Library Ass'n, 201 F. Supp. 2d at 422.

As this Court has recognized, the Internet’s remarkable

success in expanding the “marketplace of ideas” has produced

unprecedented benefits for content providers, immeasurably

enriching and amplifying their communicative powers:

“From the publishers’ point of view, it constitutes a vast platform

from which to address and hear from a worldwide audience of

millions of readers, viewers, researchers, and buyers.” Reno v.

American Civil Liberties Union, 521 U.S. 844, 853 (1997)

(“ACLU”). Today, for example, most major newspapers and

magazines, from The New York Times to Newsweek, offer online

editions of their publications, typically as quickly as — if not

more quickly than — the hard copies hit the streets. In similar

fashion, traditional book and magazine publishers sell and offer

samples of their content online. These include Random House,

which has a section of its site devoted to “e-books” (http://

www.randomhouse.com/ebooks), and HarperCollins, whose site

provides extensive descriptions and excerpts of its books (http:/

/www.harpercollins.com). Barnes & Noble now sells both

traditional print ebooks and e-books over the Internet. (http://

www.barnesandnoble.com), while Slate magazine (http://

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slate.msn.com), a journal of commentary on politics and culture,

is one of the Internet’s premier publications.

Many authors have taken advantage of the Internet to reach

new audiences with greater immediacy. In an ongoing

experimental endeavor, Stephen King recently turned to

the Internet to publish a serial novel on his Web site

(http://www.stephenking.com). See M.J. Rose, Stephen King,

the E-Pudlisher, Wirep News, June 11, 2000, at http://

www wired.com/news/culture/0,1284,36915,00.html. Political

commentators have similarly embraced the “weblog”

phenomenon and supplemented their publications in print

magazines with daily analysis of current events on the World

Wide Web. See, e.g., Andrew Sullivan, The Daily Dish, at http:/

/www.andrewsullivan.com; Mickey Kaus, Kausfiles, at http://

www.kausfiles.com. “Through the use of chat rooms, any person

with a phone line can become a town crier with a voice that

resonates farther than it could from any soapbox. Through the

use of Web pages, mail exploders, and newsgroups, the same

individual can become a pamphleteer.” ACLU, 521 U.S. at 870.

Several of the respondents in this case exemplify the range of

valuable, and sometimes controversial, information available

on the Internet to readers throughout the world. See American

Library Ass'n, 201 F. Supp. 2d at 415-16.

As most public library libraries throughout the country have

recognized, the vast and diverse materials accessible on the

Internet, which change daily, add depth and breadth to

the potential experience of library patrons, many of whom

have no means of Internet access other than their local

library. See American Library Ass'n, 201 F. Supp. 2d at 422.

In the words of Appellee ALA, “The Internet is a rich and

educational resource for information, ideas and entertainmeni.

No other medium has provided us with so much information

so easily.” American Library Association, Libraries & the

Internet Toolkit, available at http://www.ala.org/alaorg/oif/

internettoolkit.html (“ALA Internet Toolkit’). For readers, the

Internet is one of the best means of exposure to a diversity of

9

views and expressions, as well as goods and services. “The Web

is... comparable, from the readers’ viewpoint, to both a vast

library including millions of readily available and indexed

publications and a sprawling mall offering goods and services.”

ACLU, 521 US. at 853.

Of course, some of the material available on the Internet is

pornography that is illegal for minors, adults, or both, although,

as this Court has recognized, “users seldom encounter such

content accidentally.” ACLU, 521 U.S. at 854. CIPA represents

an attempt by Congress to curb the use of the Internet by library

patrons to access such material. But, as explained below, because

CIPA seeks to restrict speech in a public forum in a way that

interferes with the flow of valuable, constitutionally protected

information over the Internet, and thus impedes the mission of

libraries, it fails strict scrutiny and must be struck down.

II. FORUM ANALYSIS APPLIES TO THE PROVISION

OF INTERNET ACCESS IN PUBLIC LIBRARIES

A. Internet Access in Public Libraries Is a Designated

Public Forum

When the government regulates expressive activity on

public property, those regulations are subject to constitutional

scrutiny under the standards established by this Court’s public

forum doctrine. The Court has recognized three categories of

public fora: the traditional public forum, the designated, or

limited, public forum, and the nonpublic forum. See Perry Educ.

Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45-46

(1983). In a traditional public forum, such as streets and parks,

any content-based restrictions on speech must be narrowly

tailored to advance a compelling government interest, and there

must be no less restrictive alternative. Jd. at 45; United States v.

Playboy Entm t Group, Inc., 529 U.S. 803, 813 (2000). Similarly,

when the government creates a designated public forum, which

consists of “public property which the state has opened for use

by the public as a place for expressive activity,” the government

“is bound by the same standards as apply in a traditional public

10

forum.” Perry, 460 U.S. at 45-46. See also Cornelius v. NAACP

Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 802 (1985)

(government creates a public forum “by intentionally opening

a nontraditional forum for public discourse”). In a nonpublic

forum, government regulations must be merely reasonable and

viewpoint-neutral. Jd. at 46.

In determining whether the government has created a

designated public forum, the Court looks to “the policy and

practice of the government,” as well as to “the nature of the

property and its compatibility with expressive activity to discern

the government’s intent.” Jd. See, e.g., Kreimer, 958 F.2d at

1259-62 (holding that public library was limited public forum

based on government’s intent in opening library to expressive

activity, broad extent of use granted, and nature of forum and

its compatibility with expressive activity).°

As the district court correctly determined, a public library

creates a designated public forum when it provides Internet

access. First, Internet access in a library is obviously compatible

with “expressive activity”; indeed, it is perhaps the most

powerful medium for expressive activity ever invented. Further,

as noted, providing Internet access helps libraries advance one

of their central purposes: the dissemination of ideas.

As Appellee ALA’s “Freedom to Read Statement” advises:

3. In identifying the relevant forum, the Court looks to the access

sought by the speaker. “In cases in which limited access is sought,

our cases have taken a more tailored approach to ascertaining the

perimeters of a forum within the confines of the government property.”

Cornelius, 473 U.S. at 801 (for purposes of exclusions from a federal

employee charity drive, proper forum is not entire federal workplace,

but charity drive to which respondents sought access). Because the access

sought that is at issue here is to the Internet, not to libraries as a whole,

the district court held that the “relevant forum for analysis is not the

library’s entire collection, which includes both print and electronic media,

such as the Internet, but rather the specific forum created when the library

provides its patrons with Internet access.” American Library Ass'n,

201 F. Supp. 2d at 456. The unique characteristics of the Internet fully

support this aspect of the court’s decision.

11

“It is in the public interest for publishers and librarians to make

available the widest diversity of views and expressions,

including those that are unorthodox or unpopular with

the majority.” American Library Association, Freedom to

Read Statement, available at http://www.ala.org/alaorg/oif/

freeread.html. The longstanding deliberate “policy and practice”

of libraries across the country of making the Internet available

to library patrons greatly enhances the ability of libraries to

further that interest. It is clear, therefore, that Internet access in

public libraries is a designated public forum for exploration of

“the widest diversity of views and expressions.” /d.

The only other court to address the constitutionality of

Internet filtering in public libraries, the Eastern District of

Virginia in Mainstream Loudoun v. Board of Trs. of Loudoun

County Library, 24 F. Supp. 2d 552 (E.D. Va. 1998), determined

that Loudoun County intended to designate the county’s libraries

as public fora “for the limited purposes of the expressive

activities they provide, including the receipt and communication

of information through the Internet.” Jd. at 563. The court also

concluded that the county had broadly opened the libraries to

the public at large and that the nature of the libraries was

compatible with the receipt and communication of information

through the Internet. Jd. The court thus held that a library is a

limited public forum for purposes of its analysis of the

constitutionality of mandated Internet filtering in county

libraries. /d.

As is evident from the Loudoun decision, designated public

forum analysis is appropriate in this case whether the forum is

deemed to be Internet access (as the district court held) or the

library as a whole (as the Loudoun court held).* This conclusion

4. The Loudoun court struck down a county policy that required

all county libraries to install Internet filtering software to block material

that was obscene, child pornography or harmful to minors, on the ground

that it was an unconstitutional prior restraint. Amici believe CIPA is

unconstitutional on that ground as well, for the reasons stated in Loudoun.

Since the district court did not reach that issue, amici do not address it

further herein.

12

is reinforced by the numerous other decisions in which public

libraries have been held to be designated public fora.°

B. Appellants’ Claim That Internet Filtering Is No

More Subject to Judicial Scrutiny Than Library

Collection Development Is Flawed

Appellants attempt to avoid forum analysis altogether by

characterizing Internet filtering as a library collection

development practice. They argue that libraries have broad

discretion in determining which books, magazines, and other

materials to include in their collections, and that the same

deference must be accorded to a library’s decision to install

Internet filtering software. App. Br. at 17-32. Thus, Appellants

assert that

a public library’s need to exercise judgment in

making collection decisions depends . . . on the

traditional role that public libraries play in our

society in identifying material that is suitable and

worthwhile for their patrons. A library is no less

entitled to play that role when it collects material

from the Internet than when it collects material from

any other source.

Id. at 28. This assertion is misguided in several respects.

5. See, e.g., Kreimer, 958 F.2d at 1259 (“[{T}he Library constitutes

a limited public forum, a type of designated public fora.”). See also

Hawkins v. City & County of Denver, 170 F.3d 1281, 1287 (10th Cir.

1999) (“Examples of designated public fora include ... public

libraries.”); Neinast v. Board of Trs. of Columbus Metro. Library,

190 F. Supp. 2d 1040, 1043 (S.D. Ohio 2002) (“[A] public library clearly

is a limited public forum.”); Armstrong v. District of Columbia Pub.

Library, 154 F. Supp. 2d 67, 75 (D.D.C. 2001) (“The parties correctly

assert that a public library is a limited public forum for purposes of

constitutional analysis.”); Sund v. City of Wichita Falls, Tex., 121 F.

Supp. 2d 530, 548 (N.D. Tex. 2000) (“The Wichita Falls Public Library,

like all other public libraries, is a limited public forum for purposes of

First Amendment analysis.”).

a

13

First, the characterization of mandated filtering as an

exercise of the library’s traditional discretion with respect to

the composition of its collection ignores the fact that CIPA

actually deprives libraries of discretion in establishing

appropriate Internet usage guidelines. CIPA leaves the library

no discretion except as to the specific filtering software utilized

and the circumstances in which to permit unblocking upon

request. Because many libraries rely on federal assistance in

order to afford computers and Internet connectivity,

see American Library Ass'n, 201 F. Supp. 2d at 414-15, they

have no realistic alternative but to comply with CIPA by using

Internet filtering software if they are to offer Internet access.

Hence, it is wholly inapposite for Appellants to equate Congress’

mandate that library Internet access be filtered — the inevitable

consequence of which, as the district court found, is to deprive

library patrons of substantial amounts of constitutionally

protected expression — with the exercise of the library’s

discretion regarding the composition of its collection. Libraries

do not “collect material from the Internet,” App. Br. at 28; rather,

they make the Internet as a whole available and allow library

patrons to do the “collecting.”

In reality, installing filtering software involves outsourcing

acquisition decisions to third parties whose methodology for

discriminating between permissible and impermissible content

is proprietary and thus not subject to review by librarians or

the public. American Library Ass'n, 201 F. Supp. 2d at 430.

Mandatory Internet filtering is properly understood as

tantamount to a library subscribing to the New Republic

magazine but only receiving it after an outside vendor has torn

out all articles that refer to Dick Armey or Dick Cheney because

they contain the keyword “dick” — without disclosing why such

articles were censored. See Marjorie Heins & Christina Cho,

Internet Filters: A Public Policy Report, National Coalition

Against Censorship (Fall 2001), available at http://

www.ncac.org/issues/internetfilters.htm] (documenting a similar

finding).

14

There are also other significant differences between a

library’s traditional collection development practices and the

required use of Internet filters. By providing Internet access, a

library permits patrons to receive vast amounts of speech

“without attempting to restrict patrons’ access to speech that

the library, in the exercise of its professional judgment,

determines to be particularly valuable.” American Library Ass'n,

201 F. Supp. 2d at 462. By contrast, in selecting materials to

include in its collection, librarians regularly use their editorial

discretion, review the materials, and make judgments as to what

to acquire, based on a variety of criteria. /d. at 463. As the district

court put it, “[t]he essence of editorial discretion requires the

exercise of professional judgment in examining the content that

the government singles out as speech of particular value.” Jd.

Internet filtering involves no such judgment by librarians.

In addition, when a library decides to include a book or

magazine in its collection, the library becomes the owner of

that material; it becomes a (more or less) permanent part of the

library’s collection. When a library provides access to the

Internet, by contrast, the library does not lay claim to the Internet,

much of which, in any event, is transitory in nature. Hence,

content on the Internet does not carry the library’s imprimatur

even to the limited extent the printed books, magazines, and

newspapers in the library’s collection do.

Finally, libraries often provide Internet access for purposes

that are not comparable to putting books on the shelf.

Some libraries, for instance, allow patrons to use the Internet to

check e-mail, participate in chat rooms, and play online games.

Id. at 422. These distinct characteristics and capabilities of the

Internet expose the flaws in Appellants’ effort to depict Internet

access as nothing more than an extension of the library’s

collection. That mischaracterization elides distinctions that are

critical to the proper resolution of this case.

15

Ill. CIPA MUST, BUT CANNOT, SURVIVE STRICT

SCRUTINY

A. Reasonableness Review Does Not Apply, as Internet

Filters Regulate Speech That Is Consistent With the

Purposes of the Forum

Appellants argue that even if a library’s provision of Internet

access is deemed a designated public forum, reasonableness

review, rather than strict scrutiny, should apply to mandatory

filtering. App. Br. at 38-39. It is true that in creating a public

forum, the government may confine the forum ““‘to the limited

and legitimate purposes for which it was created,” id. (quoting

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

829 (1995)), and that any limitations in defining the forum must

be “reasonable in light of the purpose served by the forum.””

Id. at 39 (quoting Rosenberger, 515 U.S. at 829 (internal

quotations omitted)). But Appellants are wrong to claim that

because the purpose of library-provided Internet access is to

facilitate research, learning, and recreation, and because the

material required to be filtered by CIPA is inconsistent with

that purpose, only a reasonableness standard of review should

apply. Jd. at 38.

Appellants’ argument rests upon the fallacious premise that

the government has created the forum, namely Internet access

sanitized of obscenity, child pornography, and material harmful

to minors. In fact, the actual forum — unfiltered Internet access

in public libraries — long predates CIPA. By 1996, nearly five

years before the passage of CIPA, almost half of the nation’s

public libraries provided Internet access. John Carlo Bertot et

al., 1996 National Survey of Public Libraries and the Internet:

Progress and Issues, National Commission on Libraries and

Information Sciences, available at http://slis-two.lis.fsu.edu/

~cmcclure/nsp196/NSPL96_T-.html (figure 5 shows that in 1996,

44.6 percent of public libraries provided Internet access). As of

June 2000, six months before CIPA was signed into law, 95.7

percent of public libraries provided Internet access. Of those,

less than 10 percent used filtering software on all their

16

computers, and only an additional 15 percent used filtering

software on some of their computers. John Carlo Bertot et ai.,

Public Libraries and the Internet 2000: Summary Fi indings and

Data Tables, National Commission on Libraries and Information

Sciences, at 11, 18, available at http://www.nclis. gov/statsurv/

2000plo.pdf. |

It is clear, then, that by the time Congress enacted CIPA,

the great majority of public libraries had already determined to

provide their patrons with unfiltered Internet access as a forum

for expressive activity. Only after those fora had been created

did Congress seek to regulate them through CIPA. Thus, CIPA

does not define the parameters of a forum, as the school district

did in Perry with respect to its internal mail system or the federal

government did in Cornelius with respect to the charity drive.

Rather, CIPA imposes content-based restrictions on expressive

activity within a preexisting forum that properly are subject to

strict scrutiny. See Playboy, 529 U.S. at 811-13.

B. CIPA Is Not Narrowly Tailored to Serve the

Government’s Interest in Preventing the

Dissemination of Obscenity, Child Pornography,

and Material Harmful to Minors

: Strict scrutiny requires a statute that regulates speech based

on its content to be narrowly tailored to promote a compelling

government interest using the least restrictive means. Playboy,

529 U.S. at 813; Sable Communications of Cal., Inc. v. FCC,

492 U.S. 115, 126 (1989).(“It is not enough to show that the

Government ’s ends are compelling; the means must be carefully

tailored to achieve those ends.”). As the district court

exhaustively documented, CIPA fails strict scrutiny because it

is not narrowly tailored to serve the government interest in

preventing the dissemination of obscenity, child pornography,

and, in the case of minors, material that is harmful to minors.

American Library Ass'n, 201 F. Supp. 2d at 475-79.

To the contrary, the extremely poor fit between, on the one

hand, filtering software, which is neither capable of evaluating

17

images nor calibrated to the legal definitions of obscenity, child

pornography, and material harmful to minors, and, on the other,

the government’s objective of ensuring that obscenity, child

pornography, and material harmful to minors are not available

over the Internet in public libraries, renders CIPA fatally

overbroad. Lack of precision in regulating speech is not justified

by valid governmental goals. See, e.g., ACLU, 521 U.S. at 875

(“It is true that we have repeatedly recognized the governmental

interest in protecting children from harmful materials. But that

interest does not justify an unnecessarily broad suppression of

speech addressed to adults.” (citations omitted)); Sable, 492

U.S. at 128 (“The federal parties nevertheless argue that the

total ban on indecent commercial telephone communications is

justified because nothing less could prevent children from

gaining access to such messages. We find the argument quite

unpersuasive.”).

The substantial overblocking catalogued by the district court

is of particular concern to amici. As the district court found,

Internet filters suffer from multiple inherent inadequacies that

result in the blocking of vast amounts of constitutionally

protected material. These deficiencies include: (1) automated

review of blocked sites that fails to distinguish accurately

between appropriate and inappropriate content; (2) human

review of blocked sites that is hampered by limited resources

and human error, including the desire to “err of the side of

caution” by overblocking and lack of training in the legal

definitions of obscenity, child pornography, and harmful to

minors; (3) blocking of entire Web sites even when only a small

minority of their pages contain objectionable material;

(4) blocking by IP address that erroneously filters out thousands

of Web pages; (5) blocking sites that archive pages that

have been removed from the Web by their original publisher;

and (6) the failures of filtering companies to engage in regular

re-review of Web pages, which change on an ongoing basis.

American Library Ass'n, 201 F. Supp. 2d at 433, 448-49.

Moreover, as noted, the district court also found that the category

18

definitions of filtering software do not correspond to the legal

definitions employed in CIPA and that the word-based search

modes employed by software filters are not able to evaluate

images. Thus, “[n]o presently conceivable technology can make

the judgments necessary to determine whether a visual depiction

fits the legal definitions of obscenity, child pornography, or

harmful to minors.” Jd. at 449.

The government’s own expert concluded that between six

and fifteen percent of the blocked Web sites to which

library patrons sought access contained no content that met

even the filtering software’s definitions of sexually

explicit content. American Library Ass'n, 201 F. Supp. 2d at

475-76. The court noted numerous examples of erroneously

blocked sites that contained valuable content that was not

even sexual in nature. These blocked sites ranged from the

site of the Knights of Columbus Council 4828 (http://

msnhomepages.talkcity.com/SpiritSt/kofc4828), blocked by

Cyber Patrol, to a Columbia University health question-and-

answer site (http://www.goaskalice.com.columbia.edu), blocked

by Smartfilter. American Library Ass 'n, 201 F. Supp. 2d at 446-

47. As the district court noted,

At least tens of thousands of pages of the indexable

Web are overblocked by each of the filtering

programs evaluated by experts in this case. . .. Many

erroneously blocked pages contain content that is

completely innocuous for both adults and minors,

and that no rational person could conclude matches

the filtering companies’ category definition, such as

“pornography” or sex.”

Id. at 449.

In addition to the record amassed below, numerous studies

have similarly shown that the lack of precision inherent in

filtering software results in the blocking of valuable, lawful

material, often based on the presence of a keyword that, in

Ty see oe

19

another context, might be associated with sexual content. Among

sites that have been blocked in studies of filtering software are:

* The Jefferson Bible (http://www.angelfire.com/

co/JeffersonBible), a Web site containing Biblical

passages selected by Thomas Jefferson, blocked

by N2H2’s BESS filtering software; .

* a Web page from Mother Jones magazine’s site

(http://bsd.mojones.com/hellraiser_central),

blocked by BESS;

¢ The Smoking Gun

(http://www.smokinggun.com), a popular Web

site providing primary legal and other documents

relating to current events, blocked by BESS;

* the Web page of “American Government and

Politics,” a course at St. John’s University (http:/

/users.aol.com/drblw/homepage.htm), blocked

by BESS;

¢ the home page for Donna Rice Hughes’s book,

Kids Online: Protecting Your Children in

Cyberspace (http://www.protectkids.com),

blocked by Cyber Sentinel;

¢ the home pages for the Center for Democracy

and Technology (http://www.cdt.org), the

ACLU (http://www.aclu.org), and Electronic

Frontier Foundation (http://www.eff.org), and

the American Family Association (http://

www.afa.net), all blocked by ClickSafe;

* numerous Web sites related to homosexuality,

including A Different Light Bookstore (http://

www.adlbooks.com), blocked by CYBERsitter;

¢ ZapHealth (http://www.zaphealth.com), a health-

education Web site, blocked by Cyber Patrol; and

20

* the online version of Explore Underwater

magazine (http://www.exploreuw.com), blocked

by Cyber Patrol.

See generally Heins & Cho, Jnternet Filters: A Public Policy

Report. Many classic works of literature, or passages from them,

also have been blocked, including The Grapes of Wrath because

of a passage in which a woman lets a starving man suckle at her

breast, The Jungle Book, Moby Dick, and the following passage

from Robert Frosit’s “Stopping by the Woods on a Snowy

Evening” because of use of the word “queer”: “My little horse

must think it queer/To stop without a farmhouse near.” Jd.

The imprecision of the filtering software.required by CIPA,

which leads to the blocking of sites that have nothing to do

with sex, as well as of those that discuss sex and sexuality

in a non-prurient, informational manner, renders it even worse

in terms of its impact on protected speech than the imprecision

of the terms “indecent” and “patently offensive” in the

Communications Decency Act, which this Court struck down

as vague and overbroad. See ACLU, 521 U.S. at 878 (CDA’s

restrictions “may also extend to discussions about prison rape

or safe sexual practices, artistic images that include nude

subjects, and arguably the card catalog of the Carnegie Library”).

Amici strongly believe that the Constitution does not permit the

government to require library patrons to pay such a high price

in terms of the suppression of protected Internet content as a

condition of their libraries qualifying for federal funding.

The consequence of CIPA is to distort the medium of the

Internet as available in public libraries by interfering with its

normal, lawful use. In other contexts, the Court has found

interference with expression in a manner that distorts the

functioning of a communicative forum to be impermissible.

See, e.g., Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 544

(2001) (restriction on federal funding program prohibiting use

of funds to challenge welfare laws held unconstitutional in part

because it “distorts the legal system by altering the traditional

role of the attorneys” receiving funding); FCC v. League of

21

Women Voters of Cal., 468 U.S. 364, 384 (1984) (striking down

statute forbidding noncommercial educational broadcasting

stations from engaging in editorializing as a condition of

receiving certain federal funds and noting that through the statute

Congress sought “to limit discussion of controversial topics and

thus to shape the agenda for public debate’’).

Appellants’ response to CIPA’s severe overbreadth problem

is to fall back on the flawed analogy to library collection

development. Thus, it argues that a public library “does not

have an obligation to add material to its collection

simply because the material is constitutionally protected.”

App. Br. at 40. But this claim ignores the marked differences,

discussed above, between a library’s provision of Internet access

and its collection development practices. The critical point is

that public libraries have decided to make the totality of the

Internet available to their patrons (subject to certain restrictions

in some libraries) but, under CIPA, they are told that they can

no longer do so if they want government money.

Appellants’ assertion that the overblocking problem is not

constitutionally significant because library patrons need only

ask a librarian to unblock the site or, in the case of adults, disable

the filter, App. Br. at 42-44, is wrong. This Court has recognized

the right to receive constitutionally protected information

without having to disclose personal information in order to

do so. See, e.g., Denver Area Educ. Telecommunications

Consortium, Inc. v. FCC, 518 U.S. 727, 754 (1996) (striking

down provisions of federal law regulating sexually explicit

programming on cable television in part because requirement

that subscriber make written request to view such material could

have a chilling effect); Lamont v. Postmaster General, 381 U.S.

301, 307 (1965) (requirement that individuals must specifically

request to receive “communist political propaganda” through

the mail “is almost certain to have a deterrent effect, especially

as respects those who have sensitive positions”). The district

court was presented with, and credited, testimony attesting to

the existence of a chilling effect. See American Library Ass'n,

22

201 F. Supp. 2d at 411 (“[RJequiring library patrons to ask fora

Web site to be unblocked will deter many patrons because they

are embarrassed, or desire to protect their privacy or remain

anonymous.”).

Nor does the fact that blocked content “is certainly available

in numerous other places, including other computers

with Internet access,” Brief of American Center for Law and

Justice et al. at 16, cure CIPA’s constitutional deficiencies.

The availability of other venues for censored speech does

not justify a content-based abridgement of such speech.

See, e.g., ACLU, 521 U.S. at 879 (rejecting government’s

contention that CDA’s prohibitions on modalities such as chat

rooms, newsgroups, and mail exploders are constitutional

because speakers could still engage in restricted speech on World

Wide Web); Schneider v. New Jersey, 308 U.S. 147, 163 (1939)

(“[O)ne is not to have the exercise of his liberty of expression

in appropriate places abridged on the plea that it may be

exercised in some other place.”).° Moreover, approximately one-

fifth of Internet users with a household income of less than

$15,000 rely upon public libraries for Internet access. American

Library Ass'n, 201 F. Supp. 2d at 422.

Because CIPA effectively requires libraries to block

substantial amounts of constitutionally protected content on the

Internet, Appellants’ claim that CIPA is narrowly tailored fails.’

6. See also Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546,

556 (1975) (“Whether Petitioner might have used some other, privately

owned, theater in the city for the production is of no consequence.”). The

claim made by some of Petitioner’s amici that CIPA is a content-neutral

“time, place, and manner method of restricting access” to unprotected

material, Brief of National Law Center for Children and Families et al. at

19, is without merit. As the district court recognized, “[s]oftware filters, by

definition, block access to speech on the basis of its content, and content-

based restrictions on speech are generally subject to strict scrutiny.” American

Library Ass'n, 201 F. Supp. 2d at 454.

7. Amici note that this case has no bearing on the right of copyright

owners to deny access to works that are protected by digital rights

management technology.

23

C. Appellants Have Not Shown That Less Restrictive

Alternatives Would Not Advance the Government’s

Interest

Appellants also fail to rebut the district court’s finding that

there are a number of less restrictive alternatives that would be

as effective, if not more effective, than CIPA in protecting library

patrons from inappropriate online content without blocking

access to protected material. Contrary to Appellants’ claim

(see App. Br. at 44), “[w]hen a plausible, less restrictive

alternative is offered to a content-based speech restriction, it is

the Government’s obligation to prove that the alternative will

be ineffective to achieve its goals.” Playboy, 529 U.S. at 816.

“(I}f a less restrictive means is available for the Government to

achieve its goals, the Government must use it.” Jd. at 815.

The district court recognized several such less restrictive

means that many libraries have already adopted, including

Internet use policies posted in prominent locations; requiring

patrons to sign forms agreeing to comply with the policies; and

presenting patrons with a screen displaying the policies when

they sign on to a computer. American Library Ass'n, 201

F. Supp. 2d at 480. In addition, just as libraries regularly track

patrons’ book check-outs, they can review Internet activity.

As the district court noted, any violations of such policies can

result in anumber of sanctions that a library might opt to impose.

Id. at 481. While such policies might not be perfect, they are

certainly no less effective than Internet filters and are far more

effective in allowing access to material that does not even

arguably constitute obscenity, child pornography, or harmful-

to-minors material. /d. at 480-81. Among the other measures

recommended by Appellee ALA is teaching children how to

use the Internet and to be critical users of information. See ALA

Internet Toolkit.

The government’s assertion that Internet filters are the most

effective and least restrictive means of achieving its goals is at

odds with an October 2000 report issued by the Commission

on Child Online Protection. Commission on Child Online

24

Protection, Report to Congress (Oct. 20, 2000), available at

http://www.copacommission.org/report. In that report,

a congressionally-created commission studied methods to help

reduce access by minors to sexually explicit material on the

Internet. Among the methods examined were Internet filters,

about which the report stated: “This technology raises First

Amendment concerns because of its potential to be over-

inclusive in blocking content. Concerns are increased because

the extent of blocking is often unclear and not disclosed, and

may not be based on parental choices.” Jd. at 19-22. Equally

noteworthy, the commission did not recommend the mandatory

use of Internet filters as a means of protecting minors,

and advised that protective measures be “voluntary.” /d. at 39.

The commission expressed support for several other less

restrictive alternatives, including the adoption of Internet use

policies and the implementation of public education campaigns

on protecting children from inappropriate Internet material.

Id. at 39-46. See also National Academy of Sciences, Youth,

Pornography, and the Internet (May 2002) (expressing concerns

over Internet filters and support for alternative strategies).

In other contexts, this Court has heard arguments that the

voluntary use of filtering can be part of a less restrictive

alternative to government-imposed censorship. In litigations

concerning the Communications Decency Act and the Child

Online Protection Act, many of the amici advanced the view

that among the less restrictive alternatives to censorship of

Internet speech are governmental actions to promote and

facilitate the voluntary use of filtering software by parents.

See, e.g., ACLU, 521 U.S. at 877 (noting the significance of

“user-based” alternatives to governmental action). These “least

restrictive alternative” arguments further highlight why CIPA

is unconstitutional.

Less restrictive alternatives to CIPA that involve filtering

include libraries offering some computers with filters and others

without filters, see American Library Ass'n, 201 F. Supp. 2d at

484, and giving parents the option to decide whether young

25

minors can access the Internet unfiltered. /d. at 482. These

possibilities are consistent with the “user empowerment”

approach of placing technology and decision-making in the

hands of parents and users, and not the government, to control

access to Internet content.

The Court recently considered whether voluntary, parent-

controlled alternatives could represent a less restrictive

alternative to government-mandated blocking of content.

In Playboy, the Court held that governmental attempts to

promote voluntary efforts by parents to protect their children

from sexual content are a less restrictive alternative to blocking

mandated by statute. 529 U.S. at 827. Specifically, the Court

ruled that a statute that required cable companies to scramble

sexually explicit programming was unconstitutional in light of

the less restrictive alternative of governmental promotion of

voluntary blocking of the signal upon parental request. Jd. at

822. As the Court observed, “targeted blocking [initiated by

parents] enables the government to support parental authority

without affecting the First Amendment interests of speakers and

willing listeners.” /d. at 815. The Court made clear that

it is no response that voluntary blocking requires a

consumer to take action, or may be inconvenient, or

may not go perfectly every time. A court should not

assume a plausible, less restriciive alternative would

be ineffective; and a court should not presume

parents, given full information, will fail to act.

Id. at 824. As noted, it is the government’s burden to show that

such a plausible less restrictive alternative would not be

effective. Jd. at 816. It has not done so here.

The critical difference between the use of blocks and filters

in ACLU and Playboy, on the one hand, and the use of filters in

the CIPA statute, on the other, is this: CIPA mandates that filters

be imposed on Internet access as a condition of receiving federal

funding. It is by mandating that filters be imposed on all

computers in public libraries that the government crosses the

line into unconstitutional censorship.

26

The unnecessary restrictiveness of CIPA is highlighted by

its requirement that filters be imposed on a// computers in a

library that accepts federal funding under the E-rate or LSTA

programs, even those in the private offices of research librarians.

American Library Ass'n, 201 F. Supp. 2d at 413 (“[T]he FCC

has concluded that ‘CIPA makes no distinction between

computers used only by staff and those accessible to the public.”

(citation omitted)). Thus, even in contexts where there is no

question that a library professional can make his or her own

judgment about what content is necessary and appropriate, CIPA

still mandates the imposition of filters.

The voluntary use of filtering technology is certainly among

the many available tools that parents and users can employ to

address concerns about Internet content. When those tools are

mandated by statute, however, the government uses technology

not to empower users but to censor them. As the Court stated in

Playboy, 529 U.S. at 818:

The Constitution exists precisely so that opinions

and judgments, including esthetic and moral

judgments about art and literature, can be formed,

tested, and expressed. What the Constitution says is

that these judgments are for the individual to make,

not for the Government to decree, even with the

mandate or approval of a majority. Technology

expands the capacity to choose; and it denies the

potential of this revolution if we assume the

Government is best positioned to make these choices

for us.

27

CONCLUSION

For the foregoing reasons, amici respectfully submit that

CIPA is an unconstitutional exercise of Congress’s spending

power and that the entry of a permanent injunction should be

affirmed.

Respectfully submitted,

Of Counsel: R. Bruce Ricw

PAULA BRUENING Counsel of Record

John B. Morris, Jr. JONATHAN BLOOM

Alan B. Davidson Wem, GorsHaL & Mances LLP

CENTER FOR DEMOCRACY 767 Fifth Avenue

& TECHNOLOGY New York, NY 10153

1634 I Street, N.W., (212) 310-8000

Suite 1100

Washington, D.C. 20006

(202) 637-9800

Attorneys for Amici Curiae

la

APPENDIX — THE AMICI

The Association of American Publishers, Inc. (AAP) is

the national association in the United States of publishers of

general books, textbooks and educational materials.

The AAP’s approximately 300 members include most of the

major commercial book publishers in the United States and

many smaller or non-profit publishers, including university

presses and scholarly associations. AAP members publish

most of the general, educational and religious books and

materials produced in the United States. AAP’s members are

actively involved in the Internet; they create electronic

products to accompany and supplement their printed books

and journals; create custom educational materials on the

Internet; and have Web pages and provide information to the

world on the Internet.

The American Booksellers Foundation for Free

Expression (ABFFE) was organized in 1990. The purpose

of ABFFE is to inform and educate booksellers, other

members of the book industry, and the public about the

dangers of censorship and to promote and protect the free

expression of ideas, particularly freedom in the choice of

reading materials.

The American Society of Journalists and Authors (ASJA)

is the national organization of independent nonfiction writers,

with more than 1,000 members across the country. The

mission of the ASJA is to promote the welfare and

professional rights of writers and to defend against censorship

and other actions that would abridge free communication.

As book authors and magazine writers, the ASJA’s members

have a strong interest in defending against any action that

would limit the public’s freedom to read.

2a

Appendix A

The American Society of Newspaper Editors is a

professional organization of more than 800 persons who hold

positions as directing editors of daily newspapers in the

United States and Canada. The purposes of the Society

include assisting journalists and providing an unfettered and

effective press in the service of the American people.

The Authors Guild, Inc. (the “Guild’”’), founded in 1912,

is a national non-profit association of more than 7,700

professional, published writers of al! genres and 140 authors

who have active publishing contracts and are awaiting

publication of their first books. Guild members have won

Nobel and Pulitzer Prizes, National Book Awards,

Guggenheim and MacArthur Fellowships, Motion Picture

Academy Awards, Tony and Emmy Awards and countless

other awards and prizes. The Authors Guild works to promote

the professional interests of authors in various areas,

including freedom of expression, threats to which bear

directly on the ability of authors to carry on their business of

writing as a livelihood.

The Center for Democracy and Technology (CDT) is a

non-profit public interest and Internet policy organization.

CDT represents the public’s interest in an open, decentralized

Internet reflecting constitutional and democratic values of

free expression, privacy, and individual liberty. CDT’s

staff have conducted extensive policy research, published

academic papers analyses, and testified before Congress on

the impact of Internet content regulations and the availability

of alternative methods for protecting individuals online,

including user-empowerment tools and technologies.

3a

Appendix A

The Comic Book Legal Defense Fund (CBLDF) is an

organization dedicated to defending the First Amend-

ment rights of the American comic book industry. CBLDF

represents artists, publishers, and distributors, as well as the

broader community of specialty retailers and readers. Largely

because comics are a graphic-based art form, the comic industry

was quick to embrace the Internet, not only as a means to

advertise and distribute its product, but as a new environment

in which to create comics. Today, the largest individual

retailers of comic books in the United States are Internet-

based, and online commerce in comics is steadily increasing.

Magazine Publishers of America (MPA) is a national

trade association including in its present membership more

than 240 domestic magazine publishers who publish over

1,400 magazines sold at newsstands and by subscription.

MPA members provide broad coverage of domestic and

international news in weekly and biweekly publications, and

publish weekly, biweekly and monthly publications covering

consumer affairs, law, literature, religion, political affairs,

science, sports, agriculture, industry and many other interests,

avocations and pastimes of the American people.

The National Writers Union (NWU) is the only labor

union that represents freelance writers in all genres, formats,

and media. The NWU has 6,500 members in 17 chapters

nationwide. The NWU works to advance the economic and

working conditions of writers. Its constitution specifically

cites as a central principle that it is “committed to freedom

of the press, freedom of speech and freedom of expression

in all media. . .. The NWU is committed to full public access

to information and to the means of distributing ideas or

information.”

4a

Appendix A

PEN American Center, the professional association of

over 2,600 literary writers (poets, playwrights, essayists,

editors, and novelists), is the largest in a global network of

131 Centers around the world comprising International PEN.

PEN’s mission is to promote literature and protect free

expression whenever writers or their work are threatened.

In particular, PEN defends writers from censorship, harass-

ment, and imprisonment. In the United States, PEN American

Center defends the First Amendment whenever it comes

under attack. To advoca‘s for free speech in the United States,

PEN mobilizes the literary community to apply its leverage

through sign-on letter campaigns, direct appeals to policy

makers, participation in lawsuits and amicus curiae briefs,

briefing of elected officials, awards for First Amendment

defenders, and public events.

The Publishers Marketing Association (PMA) is a

nonprofit trade association representing more than 2,000

publishers across the United States and Canada. PMA

represents predominantly nonfiction publishers and assists

members in their marketing efforts to the trade.

The Society of Professional Journalists (SPJ) is dedicated

to improving and protecting journalism. It is the nation’s

largest and most broad-based journalism organization,

dedicated to encouraging the free practice of journalism

and stimulating high standards of ethical behavior. Founded

in 1909 as Sigma Delta Chi, SPJ promotes the free flow of

information vital to a well-informed citizenry; works to

inspire and educate the next generation of journalists; and

protects First Amendment guarantees of freedom of speech

and press.